Going From March Madness to Trademarks Madness

How’s your March Madness bracket doing? For U.Va. Cavaliers fans, good basketball is a distant memory, and the Cleveland Cavaliers NBA basketball team just reminded us of the good old days.

The Cleveland Cavaliers recently applied to register CAVALANCHE as a trademark. That sent many U.Va. fans into a tizzy. When U.Va. was better at basketball during the Tony Bennett era, fans used that term to describe a scoring run that put the Hoos in a commanding lead.

The Cleveland Cavaliers’ application is no coincidence. Two of its major contributors are De’Andre Hunter and Ty Jerome, who starred on U.Va.’s 2019 national championship team.

Sports fans have been asking whether U.Va. has trademark mark rights to CAVALANCHE and whether the Cleveland Cavaliers did anything wrong by taking it up. The final score: no and no.

Let’s use this situation to learn some fundamentals about trademarks.

Trademarks attach to specific goods and services. A trademark doesn’t give you a monopoly on using that word or phrase for all goods and services under the sun. (Technically, a trademark applies to goods, and a service mark applies to services; I’ll refer to them collectively as “marks.”)

Also, a mark is a form of consumer protection. It signifies who makes something (or at least controls its quality) or provides a service so that consumers can use the reputation of that source in making a purchasing decision.

The owner of a mark has the right to block others who come along later from using confusingly similar marks for the same or similar goods or services – that’s mark infringement.

U.Va. never had mark rights to CAVALANCHE because it never used it as a mark, such as on fan gear or as a slogan to promote ticket sales. It doesn’t matter that many fans used the term to describe U.Va. basketball. Such usage does not create mark rights for the team or anybody else.

The Cleveland Cavaliers are trying to establish trademark rights in the term “CAVALANCHE.” Many message board commentators have mistakenly said that the Cleveland Cavaliers “trademarked” CAVALANCHE.

“Trademark” is not a verb. You do not obtain mark rights just by filing a registration application. Mark rights are created by use. Registration only strengthens your mark rights, and you cannot get a registration until you prove your use of your mark.

The Cleveland Cavaliers registration application is for various items of fan merchandise, such as T-shirts and hats. The application is just the beginning of the process, and success is not guaranteed.

The Cleveland Cavaliers might face problems in both achieving registration and its mark-protection goals.

First, the federal trademark office might reject the application because the Cleveland Cavaliers may not be using CAVALANCHE as a mark. Remember that a mark signifies who controls quality – usually, who made the good or provided the service. An expressive term or slogan on a T-shirt or hat frequently doesn’t function as a trademark – it doesn’t tell you who made the item. It’s often just a statement the wearer wishes to make.

For use on items such as T-shirts to qualify as a trademark, labels or tags must identify the trademark as the manufacturer’s name. I doubt that’s how the team will do business. The maker likely will be NBA Properties (which is handling the registration application for the Cleveland Cavaliers) or a licensed manufacturer.

Also, even if the Cleveland Cavaliers can register the mark, doing so might accomplish little.

Registration can serve a defensive purpose – to protect your right to use the mark on the goods or associated with the services claimed in your mark registration. But usually, part of the reason for claiming and registering a mark is to prevent others from using it and to be able to stop them if they do.

You can’t stop others from using the term in common parlance when that use does not promote the sale of goods or services. Thus, the Cleveland Cavaliers wouldn’t be able to stop people from using the term in news articles, blogs, social media posts, or hashtags. While that publicity might please the team, such non-mark usage could weaken the power of the mark.

The Cleveland Cavaliers also might be unable to stop others from using the phrase on unauthorized fan merchandise. There’s a good argument that such use would be just as an expression and not a statement about who made the merchandise. If consumers don’t mistakenly believe it was made or licensed by the Cleveland Cavaliers, there would be no infringement.

Here, I see no sign that U.Va. has any concerns with the Cleveland Cavaliers claiming CAVALANCHE as a mark. But even if U.Va. made a legal challenge, that likely would be quickly shut down in court, just like the best Bennett defenses did to opponents on the court.

NOTE: A longer, more detailed version of this column is available on John Farmer’s Substack, which is here.

Written on March 19, 2025

by John B. Farmer

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