Xooker, LLC v. NCAA: Trademark Dispute over “Basketball Madness”

On April 5, 2017, Xooker filed a U.S. registration application for the mark “BASKETBALL MADNESS” to identify “downloadable electronic games via wireless devices”. After some back and forth with the USPTO, on February 13, 2018, the USPTO indicated that the mark appears to be entitled to registration and published the 547 application. On March 1, 2018, counsel for the NCAA sent Xooker a cease and desist letter alleging that “BASKETBALL MADNESS” infringes on the NCAA’s registrations of eight (8) marks involving “MARCH MADNESS”. The NCAA indicated that the “BASKETBALL MADNESS” mark “constitutes[s] trademark infringement and unfair competition under federal law as well as unfair competition and deceptive trade practices under state and common law.” Conversely, Xooker argues that the “BASKETBALL MADNESS” does not infringe upon the “MARCH MADNESS” marks and, thus, does not violation the Lanham Act. Accordingly, Xooker filed a lawsuit in the United States District Court for the Eastern District of Kentucky seeking declaratory relief and findings as follows: 1) a declaration that the use of the “BASKETBALL MADNESS” mark does not constitute trademark infringement or unfair competition under 15 U.S.C. § 1114; and 2) a declaration that the use of the “BASKETBALL MADNESS” mark does not constitute trademark infringement or unfair competition under 15 U.S.C. § 1125(a).