Protecting the Brand

by Ronald Rychlak - March 12, 2009

Reprinted with permission.

The month of March brings with it many things, usually including the first spring-like days, Lent, baseball spring training – and, for college basketball fans, the NCAA tournament. Sixty-four teams from around the nation are invited to participate. For many programs (including the one at the university where I teach), a major goal of each season is to "make the playoffs." Other schools aspire to making the Sweet 16, the Final Four, or the National Championship.

The NCAA tournament has developed a huge following. Television ratings are high, tickets are hard to come by, and fans from all over participate in NCAA "pools." They get copies of the playoff brackets, fill them out with their predicted winners, and join with other fans to see who can make the best picks. Usually, each participant pays a certain amount of money into the pool, and the person who picked the most winners gets the pot. (It is probably worth noting that the Catholic Church does not consider all gambling to be sinful, only excessive gambling. Legality may be a different issue – those laws vary from state-to-state – but I used to participate in a pool that was run by a federal appellate court judge.)

The popularity of the NCAA tournament has caused it to be dubbed "March Madness." Watch the promotions for the television broadcasts, and you'll see many references to that term. You'll also see advertisements for food, drinks, and big-screen TVs, urging you to buy products for the tournament. Those ads however, will not use the term "March Madness." They may talk about "basketball games," or "the playoffs," but "March Madness" is a trademark of the NCAA; other entities are not permitted to use it without permission (typically obtained by paying a fee). You may notice this same law in action when, during the build-up to the Super Bowl, advertisements urge consumers to stock up "for the big game" rather than "for the Super Bowl."

Corporations, associations, and institutions invest a lot of time and money in building up their reputations. Often those reputations depend upon the ability to restrict the use of their trademarks. McDonald's, for instance, would not permit a competing restaurant to sell a sandwich called a "Big Mac." The Disney Corporation is well-known for protecting its reputation, even if that means cracking down on a small-time nursery school that put a drawing of Mickey Mouse on its sign.

If a corporation does not protect its trademark, the term can fall into general use and lose all of its legal protection. Aspirin, for instance, was once a trademarked name, but it became widely used, and the holder of the legal rights did not assert them. Accordingly, any manufacturer can now sell aspirin. The same is true of escalators, zippers, yo-yos, and Webster's Dictionary. Several years ago, Xerox ran a campaign urging lawyers not to ask their secretaries to Xerox pages, but to ask them to "photocopy" pages. Similar discussions have been had by the people who make Kleenex brand tissues, and Google is starting to worry about this too.

All of this is, I suppose, a long introduction to a short point: I wish the Catholic Church had protected her brand better.

Unfortunately, too many "Catholic" colleges and universities are afraid to embrace their faith. Catholic politicians not only resist clear Church teaching, in some cases they lead the people to confusion by making false statements about the Faith. There are even some groups that call themselves "Catholic," but they openly work against Church interests. The organization "Catholics for Choice," for instance, devotes its energy to misinterpreting Church teaching and trying to have the Holy See ejected from the United Nations. It should not, in any sense of the word, be considered Catholic.

It is impossible for the Church to control the term "Catholic" in the same way that the NCAA controls the term "March Madness." It is encouraging, however, to see the pope tell an American politician that she cannot be Catholic and support legalized abortion. Catholic colleges and universities are starting to be called out when their actions stray too far from Church teachings. The American bishops have taken a leading role in opposing the Freedom of Choice Act, and there is even a new, Web-based project designed to hold conservative Christians accountable for their political choices.

These are all encouraging signs, but much remains to be done. In the meantime, remember that not every group that calls itself Catholic actually reflects the Church's teachings.

Here's hoping that your teams do well in "the tournament"!

Ronald J. Rychlak is the associate dean and MDLA Professor of Law at the University of Mississippi School of Law. He is the author of Hitler, the War, and the Pope (2000) and Righteous Gentiles (2005).