Just as the NCAA Men’s and Women’s College Basketball tournaments were getting underway, the NCAA itself entered its own competition – suing sports betting company DraftKings for its use of NCAA-protected trademarks MARCH MADNESS, FINAL FOUR, SWEET SIXTEEN, and others. Seeking a temporary restraining order and permanent relief in federal court in the Southern District of Indiana, the NCAA claims that “DraftKings recently adopted and began using the NCAA’s federally registered MARCH MADNESS®, FINAL FOUR®, ELITE EIGHT®, and NCAA SWEET SIXTEEN® trademarks, as well as confusingly similar variations thereof, including without limitation MARCH MANIA, in connection with such gambling services, without authorization, and in a manner that is intended to and does falsely suggest an association with, sponsorship by, or approval of DraftKings by the NCAA.”
As part of its complaint, the NCAA included the following examples of DraftKings’ alleged infringement - “embedding the marks and logos into betting menus:”
In response to the complaint, a DraftKings spokesperson stated: “DraftKings does not use the term March Madness as a trademark, but rather uses it in plain text and as a fair use in the same manner that other tournaments are displayed, such as the NIT, in order to accurately identify the different tournaments and their respective games.”
While the NCAA likely challenged DraftKings due to the overt relationship with sports betting (something the NCAA has stridently lobbied against), this lawsuit serves as a good reminder to marketers that commercial use of the popular MARCH MADNESS and FINAL FOUR phrases during this time of year is risky, as the NCAA aggressively enforces its rights in those trademarks. What may seem like common nomenclature to everyday users are protected terms that have specific source identifying relevance.
[UPDATE - the judge denied the NCAA's request for a temporary restraining order because irreparable harm could not be shown at this point, since the NCAA's inaction over DraftKings' use of the trademarks at issue lasted several years; however, the judge did conclude that the NCAA is likely to succeed on the merits of both its false association and dilution claims.]
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