The NCAA’s recent legal move against DraftKings is putting a spotlight on a question many businesses don’t think about. Until it’s too late.
When does referencing a major event cross the line into trademark infringement?
At the heart of this case are phrases most of us toss around every spring without thinking twice: “March Madness.” “Final Four.” “Elite Eight.” “Sweet Sixteen.” These feel like cultural shorthand. But legally, they are federally registered trademarks owned by the NCAA. And now, the organization is asking a federal court for an emergency restraining order, claiming DraftKings used these terms in ways that create a false impression of an official partnership.
DraftKings, on the other hand, is pushing back. The company argues it isn’t using these phrases as trademarks at all. It’s simply using plain language to identify the tournaments its customers are betting on.
So who’s right?
The answer isn’t as simple as it might seem.
Why the NCAA Is Taking Action
From the NCAA’s perspective, this case is about protecting brand identity and preventing consumer confusion.
Trademark law exists to stop businesses from misleading consumers about the source or sponsorship of goods and services. If a user sees “March Madness” embedded in a DraftKings betting menu or promotional graphic, the NCAA argues they might reasonably assume there’s an official relationship between the two.
The NCAA has spent decades building these tournament phrases into some of the most recognizable event branding in sports. The tournament generates significant annual revenue tied directly to licensing and sponsorship deals, much of it built on the exclusivity of those marks.
From that lens, allowing widespread, unlicensed commercial use of its trademarks could weaken both its brand and its business model. Worth noting: other major sportsbooks, including Bet365 and BetRivers, displayed these same tournaments without using the NCAA’s trademarked terms. That detail matters. It suggests the line DraftKings crossed was one that other operators chose not to approach.
DraftKings’ Position and the Real-World Marketing Dilemma
DraftKings’ defense raises a genuinely interesting legal argument.
The company says it isn’t using “March Madness” as a trademark. It’s using it in plain text, the same way it identifies other tournaments like the NIT, simply to tell users which games they can bet on. According to DraftKings, that’s protected speech under the First Amendment and not a trademark violation.
It’s also worth noting that before the lawsuit was filed, DraftKings had already removed some of what the NCAA called the more “egregious” uses of the terms. The company drew its own line. It just drew it differently than the NCAA wanted.
This reflects a broader issue businesses face every day.
How do you talk about a major cultural or sporting event without referencing it by name?
“March Madness” isn’t just a trademark. It’s part of everyday language. Fans, media outlets, and even workplaces use it casually every spring. This raises a key legal concept: nominative fair use.
In plain terms, nominative fair use allows a business to reference a trademarked term if it’s necessary to describe something and doesn’t imply sponsorship. A sports blog can write about “March Madness” without infringing on the NCAA’s trademark.
But things get murkier in commercial contexts.
When a company uses a trademark inside a betting platform or promotional campaign, the risk of implied endorsement increases. Courts often look at factors like:
- Is the trademark necessary to describe the product or service?
- Is the brand using more of the trademark than needed?
- Does the use suggest endorsement or affiliation?
In competitive industries like sports betting, even subtle wording choices can carry legal weight.
What This Means for Business Owners
For business owners, the NCAA vs. DraftKings situation isn’t just a headline. It’s a practical lesson.
If you’re thinking about referencing a major event in your marketing, here are a few grounded takeaways:
1. Context matters more than the words themselves. Using a trademark in a blog post or editorial piece is very different from using it inside a promotion, betting menu, or paid campaign.
2. Ask whether your use implies a relationship. If a customer could reasonably think you’re affiliated with or endorsed by the event organizer, that’s a red flag worth taking seriously.
3. Consider alternatives when possible. Phrases like “college basketball tournament season” aren’t as catchy, but they carry significantly less legal risk. This is why you’ll often see brands say “The Big Game” instead of “Super Bowl.” The NFL has famously pushed back on businesses using “Super Bowl” in ads, and many have quietly adjusted their language as a result.
4. When in doubt, get legal guidance. Trademark disputes can be expensive. A quick review on the front end is almost always cheaper than defending a claim later.
Not sure whether your own marketing crosses any lines? That’s exactly what a Brand Protection Call is for. Book yours here — it’s free.
The Bigger Legal Tension
This case highlights a broader tension in trademark law: balancing brand protection with free and fair commercial speech.
Trademark owners like the NCAA have a legitimate interest in controlling how their marks are used. Without enforcement, trademarks can lose their distinctiveness over time. In extreme cases, they can become so widely used that they lose legal protection altogether.
At the same time, overly aggressive enforcement can create a chilling effect. Businesses may avoid perfectly lawful references simply out of fear of legal action.
This tension isn’t new. Similar disputes have come up around the Olympics, the World Cup, and other high-profile events. In each case, the question is the same: where does legitimate reference end and trademark infringement begin?
Where Courts Typically Land
While every case depends on specific facts, courts generally focus on one central question:
Is the use likely to confuse consumers?
If the answer is yes, or even potentially yes, the trademark owner often has the upper hand.
In cases involving major events, courts tend to be especially protective because the trademarks are widely recognized, licensing markets are well established, and the financial stakes are high.
That said, courts also recognize that not every reference is infringement. Purely informational or editorial uses are often protected, especially when there’s no commercial tie-in. The challenge is that most real-world uses fall somewhere in between.
DraftKings’ First Amendment argument adds another layer. Courts have recognized that businesses have some latitude to use trademarked terms when they’re genuinely descriptive, not decorative. Whether a betting platform qualifies as that kind of descriptive use is exactly the kind of question this case may help answer.
A Case Worth Watching
What makes this dispute compelling is that both sides have legitimate arguments.
The NCAA is protecting a valuable brand built over decades, one that funds a massive ecosystem of college athletics. DraftKings is operating in a space where referencing major sports events is practically unavoidable.
This isn’t a clear-cut case of right versus wrong. It’s a reflection of how modern marketing, language, and intellectual property law intersect and sometimes collide.
As the case unfolds, it may offer more clarity on where courts draw the line. But the takeaway for business owners is worth sitting with right now:
Just because a phrase feels like common language doesn’t mean it’s free to use in your marketing. Especially in a commercial context.
Final Thought
The goal isn’t to make your marketing cautious to the point of being bland. It’s to be intentional.
Understanding the difference between talking about an event and leveraging its brand can make all the difference. Not just legally, but strategically.
Because in today’s landscape, the words you choose don’t just shape your message. They can shape your risk.
If you’re building a brand that matters, protecting it should be part of your strategy from day one. Book a free Brand Protection Call and let’s take a look at where you stand.
