Going From March Madness to Trademarks Madness
A Cavaliers vs. Cavaliers Trademark Battle?
Note: A much shorter, less detailed version of this column is available on the Leading-Edge Law Group website.
How’s your March Madness bracket doing?
For U.Va. Cavaliers men’s basketball fans, good basketball is a distant memory, and the Cleveland Cavaliers NBA basketball team just reminded us of the good old days.
The Resemblance of the Two Cavaliers
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, many fans used that term to describe a scoring run in which U.Va.’s pack-line defense stifled the opponent while its offense went on a run, putting the Hoos in a commanding lead.
Perhaps the most significant Cavalanche occurred during the 2013-14 season. In twelfth-ranked Virginia’s final home game against fourth-ranked Syracuse, the game was tied at 42 with 10:58 remaining in the second half. U.Va. outscored Syracuse 33 to 14 over the remainder of the game en route to a 75-56 victory, producing Bennett’s first outright ACC regular-season championship.
That team went on to win U.Va.’s first ACC tournament championship since 1976 (beating Duke) and a number one seed in the NCAA tournament, in which it lost to nemesis Michigan State in the Sweet Sixteen. That team featured future NBA players Malcolm Brogdon, Joe Harris, Anthony Gill, Justin Anderson, Mike Tobey, and London Perrantes, along with stalwart Akil Mitchell. My, how times have changed!
That application by the Cleveland Cavaliers 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.
Did the Cleveland Cavaliers Commit a Trademark Foul?
Many sports fans have been asking whether U.Va. has trademark 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 basics about trademarks.
A trademark is a word, phrase, slogan, logo, or something else that identifies the source of specific goods or services. A trademark is a form of consumer protection. It signifies who makes something (or at least controls its quality) or who provides a service so that consumers can use the reputation of that source in making a purchasing decision.
Trademarks attach to specific goods and services. (Technically, a trademark applies to goods and a service mark applies to services; I’ll refer to them collectively as “marks.”)
A mark doesn’t give you a monopoly on using that word or phrase for all goods and services under the sun. Two different companies can have the same term as a mark if the marks are used for unrelated things. For example, DELTA Airlines and DELTA Faucets coexist despite using the same DELTA mark because no one would be confused into believing that a company that provides airplane rides also makes plumbing fixtures.
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. Failed to Score
U.Va. never had mark rights to CAVALANCHE. It never used CAVALANCHE as a mark on any fan gear or licensed any fan-gear manufacturer to do so. It also never used it as a slogan to promote any services, such as sales of tickets to its basketball games.
In a search of the U.Va. athletics website (VirginiaSports.com), the term appears only once in a blog post in 2016 in the body of a paragraph describing happiness over the return of a beloved player to the women’s basketball team. That’s not a use of CAVALANCHE as a mark.
It doesn’t matter that many U.Va. fans used the term to describe U.Va. basketball before the Cleveland Cavaliers ever used it. Usage of a term by a team’s fans (or by fans of any business) does not create mark rights for the team or anybody else.
Thus, U.Va. has no senior mark rights with which to stop the Cleveland Cavaliers from claiming CAVALANCHE as a mark.
Just Showing Up at the USPTO Isn’t Good Enough to Win a Trademark
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 obtain a registration until you prove your use of your mark.
For example, if I open a hot dog stand on the corner of 10th and Cary Streets in downtown Richmond, Virginia, and call it FARMER’S FULL-COURT FRANKS, I would have common-law mark rights from the moment I sold my first hot dog. Those rights would cover only my geographic marketplace, which might be just downtown Richmond.
I can strengthen those rights by filing a state or federal mark registration application. Among other things, it puts others on notice of my mark rights. Getting a federal registration is more expensive but creates much stronger rights than a state one.
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. Even if everything goes as smoothly as possible, it will take about 18 months for the team to receive a federal registration.
Can the Cleveland Cavaliers Beat the Defense at the USPTO?
The Cleveland Cavaliers might face problems in achieving registration and its mark-protection goals.
First, the United States Patent and Trademark Office (USPTO) might reject the application because the Cleveland Cavaliers may not be using CAVALANCHE as a trademark.
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. In trademark terminology, such merely expressive terms are called “ornamental use.” An ornamental use is not a mark use, so it can’t be the basis for claiming or registering mark rights.
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. For example, during the 1980s, a popular T-shirt bore the slogan “I’m with stupid” and a drawing of the hand pointing to the left or right. That usage wouldn’t be a basis for getting a trademark registration for I’M WITH STUPID for T-shirts because that’s not the name of the T-shirt maker.
If the Cleveland Cavaliers use hangtags and other things to show that “Cavalanche” made the garment, that might fly, but I doubt that’s how the team will do business. The maker likely will be NBA Properties (which is handling the mark application for the Cleveland Cavaliers) or a licensed manufacturer.
This isn’t a black-and-white issue. Sometimes, you can register as a mark some design or name that appears on the front of the T-shirt or the hat if that design also identifies the manufacturer, such as the famous Nike Swoosh.
Will the Cleveland Cavaliers Struggle to Protect the Trademark Ball?
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 (i.e., just an ornamental use) and not a statement of the origin (e.g., the manufacturer) of the unlicensed merchandise. If consumers don’t mistakenly believe that the unauthorized merchandise was likely made or licensed by the Cleveland Cavaliers, then there would be no mark infringement.
A recent federal district court jury verdict in Pennsylvania went in favor of Penn State against an unauthorized maker of college fan merchandise, but that’s not the same situation because it concerned using team names and logos rather than expressive slogans.
Yet, practically speaking, the Cleveland Cavaliers could send cease-and-desist letters to any maker of unauthorized fan merchandise bearing the slogan CAVALANCHE, and the target might back down because it doesn’t have much money, and it probably wouldn’t be worth spending a lot of money fighting the case.
Good Defense Wins Championships and Lawsuits
While the term CAVALANCHE reminds U.Va. sports fans of some great basketball moments during the best of the Tony Bennett era, his teams were mainly known for tenacious defense, holding down the other team's scoring. Holding an opponent to 20 or fewer points in a half or 50 in a game became known as a “Tony.”
Here, I see no sign that U.Va. is concerned with the Cleveland Cavaliers claiming CAVALANCHE as a mark. But even if U.Va. made a legal challenge, it would likely be quickly shut down in court, just like the best Tony Bennett defenses did to opponents on the court.
Written on March 19, 2025
by John B. Farmer
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