NCAA scores victory in trademark infringement case

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A Las Vegas-based fantasy sports sweepstakes company can no longer use the phrases “Final 3” and “April Madness” in its events related to the NCAA Division I Men’s Basketball Championship after a district court judge granted the NCAA’s request for a permanent injunction in a trademark infringement case. 

After entering default against Kizzang LLC and its owner, Robert Alexander, in November 2017, Indiana Southern District Chief Judge Jane Magnus-Stinson granted the Indianapolis-based sports giant’s motion for preliminary injunction on Thursday in National Collegiate Athletic Association v. Kizzang LLC and Robert Alexander, 1:17-cv-00712. The NCAA sued Kizzang last March for trademark infringement and dilution and unfair competition, arguing Kizzang’s use of “Final 3” and “April Madness” in its sweepstakes was willful infringement on the well-known “Final Four” and “March Madness” trademarks.

Kizzang failed to respond to the complaint within the applicable timeframe, leading to the entry of default.  The NCAA then moved for default judgment in its favor and a permanent injunction prohibiting the Vegas company from using the contested phrases in its business practices, as well as an order requiring the company to recall all products, services and advertising bearing the phrases.

Magnus-Stinson granted all of the relief the NCAA requested, writing first in her Thursday order that Kizzang failed to show good cause for its default, to act timely to remedy the default or to show meritorious defenses. Thus, the defendants conceded via their default that they engaged in trademark infringement and dilution and unfair competition, she said.

The chief judge then found the NCAA had suffered irreparable harm through Kizzang’s use of the “Final 3” and “April Madness” marks, and that it was in the public interest to prohibit the sweepstakes company from using those marks to avoid consumer confusion. She issued a permanent injunction enjoining Kizzang from using those marks in its sweepstakes, from acting in a way that would cause customers to believe its products were connected to the NCAA, or from acting in a manner that would dilute and tarnish the Final Four or March Madness marks.

Next, Magnus-Stinson ruled the NCAA’s complaint presented an “exceptional case” entitling the Indianapolis organization to attorney fees.

“Defendants’ marks are obviously similar to the NCAA’s marks, and Defendants planned to use the marks in connection with contests and events related to NCAA basketball games,” she wrote. “This indicates willful infringement.”

Finally, the chief judge granted the NCAA’s request to order Kizzang to “immediately recall from all distribution channels all products, services, advertising, and promotional materials bearing the NCAA Marks and any colorable imitations of them… .” Further, the defendants must submit a report to the NCAA within 30 days detailing how they have come into compliance with the court’s order.

Magnus-Stinson ordered the NCAA to file for attorneys’ fees by Feb. 23, and also instructed the magistrate judge to meet with the parties to see if they can reach an agreement on the fees. Final judgment will enter in the case after the attorneys’ fee issue is resolved.

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