NCAA Sends C&D To National Collegiate Pickleball Association Over Trademark Concerns

Trademark

from the pickle-people dept

It shouldn’t surprise anyone that the NCAA has appeared all over Techdirt, representing itself as a jealous and prolific defender of all the intellectual property rights the college athletics organization has, or imagines it has. Like any good cabal, the NCAA is both extremely insular and also aggressive when it comes to anyone else using anything that remotely is or looks like its property.

So perhaps it’s not terribly surprising to see that the NCAA has decided to send a cease and desist letter to the National Collegiate Pickleball Association, or NCPA.

As reported by the San Diego Union-Tribune, the NCAA has shared concerns with Noah Suemnick about the NCPA’s name given its similarity to “NCAA” and that both involve college sports.

Suemnick, 22, founded the NCPA following the pandemic as he saw pickleball’s popularity take off. The NCPA’s overarching goal is to “unite the sport of pickleball and colleges” and provide college athletes with “tools and resources” to help them advance. It plans to host its tournament in San Diego, with over 50 colleges participating and a live broadcast on a major network.

The NCAA hasn’t sanctioned pickleball as a sport, though that could change in the future. Numerous colleges have club pickleball teams​, and more Americans play the sport than softball, volleyball and other established sports. Pickleball has also emerged professionally in recent years, with Major League Pickleball, the Professional Pickleball Association and other businesses involved with pro competitions.

Okay, so what’s going on here? Well, several things. First, while the NCAA hasn’t sanctioned the sport of pickleball yet, that “yet” is probably doing a great deal of work at the moment. After all, if your experience is remotely like mine, you can’t walk out your door and drive more than a couple of miles before you see a pickleball court, see people lugging around pickleball gear, hear something about pickleball on the radio, or somehow come into contact with the existence of the sport. It’s freaking everywhere. The idea that much more time could go on before the NCAA decides to add the sport to its roster of college athletics feels absurd.

Couple that with the fact that the NCPA plans to host its first tournament in March, a very important month for the NCAA. A maddening month, even. And then there’s the fact that the two organizations’ acronyms are only a single letter apart, and the lay person may be wondering if the NCAA actually might have a point here.

But it’s not quite so clear. Two things come into play here. First is that there are a decent number of non-NCAA registered trademarks that are about as similar as that of the NCPA.

A quick search on the Trademark Electronic Search System finds active registrations for the National College Players Association, the National Collegiate Esports Association, the National Collegiate Rugby, the National Collegiate Scouting Association and the National Collegiate Performing Arts. There are also sports organizations such as the National Collegiate Boxing Association and the National Collegiate Table Tennis Association, but they haven’t applied for USPTO registration.

If those marks aren’t a problem, why is the NCPA’s? Particularly when you have one that, while admittedly is not involved in athletics, but is the exact same acronym in the National Collegiate Performing Arts, or NCPA.

Then there’s the insight from law professor Alexandra Roberts, who is a tremendous and very fun Twitter follow if you want to geek out on trademark law and issues.

Roberts opined it’s “possible” consumers might assume the use of “National Collegiate ___ Association,” with a sport occupying that blank line, “could have something to do with NCAA, since it’s the governing body of college sports.”

If the NCAA produces survey data that consumers associate NCPA or its tournament with the NCAA, she said, “that evidence would go a long way toward bolstering [the NCAA’s] infringement claim.”

But Roberts stressed both marks “seem fairly descriptive” and both are probably “different enough for consumers to distinguish them easily.” She also noted that, as far as she knows, the NCAA doesn’t “use any ‘National Collegiate [name of sport] Association’” marks. 

So is this trademark infringement? Is there actually a likelihood of confusion? It certainly isn’t as cut and dry as it might seem. Between the descriptive nature of the marks combined with the NCAA’s failure to police some of those previously mentioned marks used by other organizations, it sure feels like the pickleball people are being singled out, which is not how trademark enforcement is supposed to work.

If all else were equal, I would expect this to get to the trial phase of this dispute. The NCPA has not made any mention of any interest in changing its name thus far, but we’ll have to see what happens if the NCAA decides to expend some of its giant legal war chest to take this from mere bullying into an actual lawsuit, predicated of course on how the USPTO comes down on the NCPA’s trademark application to begin with.

Filed Under: likelihood of confusion, ncpa, pickleball, trademark
Companies: ncaa