NCAA uses full-court press to protect branded phrases like ‘March Madness’

As Indianapolis welcomes the men’s college basketball championship tourney this weekend, another springtime ritual associated with the NCAA has been playing out largely behind the scenes.

The organization again is taking several aggressive steps in the tournament’s host city and across the nation to protect its branding and stop the unauthorized commercial use of its familiar trademarked phrases such as “Final Four” and “March Madness.”

“Clean zones” have been created around tournament venues, where police are prepared to toss out vendors without a permit and others selling unlicensed gear bearing NCAA branding.

Cease-and-desist letters have been sent to restaurants, bars and other busine sses demanding that they stop using the protected terms for tournament-themed specials or in other marketing material.

In its most visible action in recent weeks, the NCAA filed a federal lawsuit seeking to block sports-betting company DraftKings from using “March Madness” and other trademarked terms in its marketing and advertising.

A federal judge in Indianapolis last week denied the NCAA an emergency temporary restraining order in the case, saying it failed to show it would suffer irreparable harm from DraftKings’ activity.

However, U.S. District Judge Tanya Walton Pratt said the NCAA had made a strong trademark infringement case and “may be able to show they are entitled to a preliminary or permanent injunction” as the case proceeds.

Taken as a whole, the NCAA’s trademark protection moves help illustrate the complexities of the law. While trademark law allows others to use trademarked terms in a general sense without suggesting an association with the branded entity, it also puts pressure on companies to protect and enforce their trademarks or risk seeing their brand names slip away to generic use.

“The message to send to businesses is if you want to refer to March Madness, trademark law would say you have wide room to do that,” said Mark Janis, director of the Center for Intellectual Property Research and Robert A. Lucas chair at the Indiana University Maurer School of Law, “But the reality is if you are a small business and you don’t want to get a nasty letter, maybe avoid it.”

Many businesses have decided, unlike DraftKings, that it’s not worth running the risk of being sued.

A lucrative brand

The NCAA has worked since the 1990s to build and protect the brands associated with its college sports tournaments.

It now holds at least 50 trademarks on phrases pertaining to tournaments for everything from baseball to hockey to soccer. But the bulk of them relate to basketball, including “Sweet Sixteen,” “Elite Eight,” “The Big Dance” and “The Road to the Final Four.”

The marks associated with men’s basketball are especially important financially. The Division I men’s tournament annually generates about $1 billion in media rights revenue and licensing income — money that helps fund the tournaments and a variety of sports at the NCAA’s member schools.

“I wouldn’t say you are wrong,” said NCAA associate counsel Leilyn Miles, when asked about the tournament’s financial importance. “I’d say we value both the (men’s and women’s) tournaments equally, but a lot of revenue does come from the men’s tournament.”

But for the NCAA, she said, protecting trademarks is about more than just revenue.

“The NCAA trademarks symbolize the trust, integrity and the goodwill that is associated with the NCAA and its events,” Miles said. “It’s of the utmost importance to prevent consumer confusion and maintain that trust and brand integrity.”

The NCAA has made brand integrity a key part of its dispute with DraftKings.

In a written statement, the organization said DraftKings’ “unauthorized use of its trademarks is flatly contrary to one of the Association’s most deeply held institutional values: that sports betting must not be associated with, endorsed by, or linked to NCAA championships or the student-athletes who compete in them.”

A history of litigation

The NCAA’s trademark portfolio has been built through years of legal battles and negotiations over ownership of terms like “March Madness,” which were not always exclusively tied to the organization.

The NCAA and its partners have increasingly consolidated control over those marks, expanding licensing programs and enforcement efforts as the tournament grew into a billion-dollar media property.

Even seemingly minor uses can draw scrutiny. Advertising a “Final Four” party, running a “March Madness” sale, or hosting a bracket contest using trademarked phrases can trigger enforcement action if the NCAA determines the use suggests an official connection.

The organization has also challenged attempts to register similar-sounding trademarks, opposing names like “March Greatness” or “Final Friday” on the grounds they are confusingly close to its own marks.

Free Press Indiana, a nonprofit news organization and parent of Mirror Indy, is among the businesses and groups that got tripped up this year by the NCAA’s aggressive enforcement.

It received a cease-and-desist letter after promoting a fundraising campaign called “March Matchness,” intended to raise money to unlock a matching grant.

Free Press Indiana complied with the NCAA’s request and shifted to a themeless campaign, while the news nonprofit’s CEO criticized the NCAA for singling out his much smaller organization.

“Wow, a rule the NCAA actually enforces,” CEO Bro Krift exclaimed in a social media post on X. “In the chaotic college sports era of NIL (name, image and likeness) and transfers, lawyers spent their time coming after our small nonprofit newsroom for a March donation campaign.”

Others also disagree with what they consider to be the NCAA’s over-the-top approach. Like DrafKings, they argue that using the protected terms to simply refer to the basketball tournament constitutes “fair use” and does not in and of itself claim affiliation with the NCAA.

In a court filing last week, DraftKings said “March Madness” and “Final Four” are the “same words used by other online sportsbooks, who have not been singled out by the NCAA’s fevered complaint.”

The sportsbook also said the NCAA has a commercial agreement with a company whose business is providing in-game data to sportsbooks.

Trademark attorneys agree it’s important for organizations to protect their brands or risk losing them altogether.

Holiday Banta, a trademark attorney and partner at Ice Miller in Indianapolis, said history offers several cautionary examples. Terms like “aspirin” and “escalator” were once protected trademarks but became generic after companies failed to police their use, stripping them of exclusive rights.

Other brands — such as Kleenex, Xerox and even Google — have fought to avoid the same fate, spending heavily on campaigns to ensure their names are not used generically.

Once a trademark becomes a generic name for a broad product category rather than a distinct brand, it can lose legal protection — and with it, the ability to control quality, reputation and licensing opportunities.

Banta declined to comment directly on the DraftKings case, noting that Ice Miller represents the company in some patent matters and advises the NCAA in some matters other than intellectual property.

Most of the NCAA’s trademark disputes are resolved without having to go to court and receive little public attention. But over the years, the NCAA has still built a reputation for aggressive trademark enforcement with some significant court wins, according to the Broadcast Law Blog.

In one 2016 case, the NCAA successfully challenged a urology clinic’s “Vasectomy Mayhem” campaign during March, arguing that the basketball-themed advertising was tied too closely to the tournament.

The following year, it sued an online promotions company for using “April Madness” and “Final 3,” ultimately winning a default judgment and nearly $221,000 in attorneys’ fees after a court found the infringement willful.

And in another case, the NCAA took action against a car dealership using “Markdown Madness” in promotions, a dispute that ended in a settlement.

Enforcement in host cities

The NCAA’s protection efforts are especially strong in Indianapolis, where the organization is headquartered, and historically in all Final Four host cities.

During championship events, local government officials in Indianapolis and other host cities establish “clean zones” for the tournament — designated areas around game venues where advertising and vending are tightly controlled.

In Indianapolis this year, the zone includes much of downtown, especially the areas around Lucas Oil Stadium, Gainbridge Fieldhouse and Georgia Street.

Within the zone, vendors must obtain special $75 permits to operate, and only approved sponsors can use NCAA branding in advertising, said Abbey Brands, director of the city’s Department of Business and Neighborhood Services.

City inspectors will patrol the area throughout the weekend, watching for unauthorized food trucks, pop-up vendors or sellers of unlicensed merchandise. Most violators merely receive verbal warnings to move along.

“We’ll approach them and say, ‘Hey, you don’t have a license,’” Brands said. “Nine times out of 10 … they’ll move.”

Recalcitrant offenders can receive citations and court summonses. Fines of up to $2,500 can be imposed but are usually in the range of $500 or less. Hostile objections can draw the police.

The NCAA supplements that enforcement with its own efforts. Staff, partners and volunteers monitor activity, while a dedicated reporting system allows both insiders and the public to flag potential violations by emailing [email protected].

“We really rely on the community to help us find these infringements,” Miles said.

The result is a coordinated effort involving city officials, law enforcement, licensing partners and the NCAA itself — all aimed at preserving the value of one of the most recognizable brands in sports.•