Seven hours before Purdue and Texas tip off to start the NCAA Men’s Sweet 16, lawyers for the governing body of major college athletics will face off with attorneys from DraftKings in an Indiana federal court in hopes of getting a restraining order temporarily preventing the Boston-based gaming company from using the association’s trademarked content on its sports betting app.
U.S. District Judge Tanya Walton Pratt on Tuesday scheduled a hearing on the TRO for Thursday at noon ET in the federal courthouse in Indianapolis. Both parties will get an hour each to argue their case, and the court expects no witnesses to testify.
It’s uncertain if the decision on the TRO would happen immediately after the two-hour hearing or later.
The NCAA filed its lawsuit against DraftKings on Friday, the second day of the men’s first-round games and the first day for the women’s round of 64. The Indianapolis-based organization claims the sports betting giant used such trademark-protected terms as March Madness, Sweet Sixteen, Elite Eight and Final Four on its wagering app without approval.
Further, the NCAA alleged DraftKings also used verbiage it claims would “falsely suggest an association” between the two entities, such as March Mania.
DraftKings, in a statement to Gambling Insider early Saturday, defended its use of the trademarks, saying it fell under the fair use standard.
Fair use dates back to the 1800s, thanks to federal court rulings, with Congress finally writing formal guidelines nearly a half-century ago. The Copyright Act of 1976 established four factors to evaluate whether the use of protected intellectual property by another party falls under legal use.
Those factors are: whether the content is used for commercial or educational purposes; the nature of the protected material; the amount used; and whether the usage impacts the value of the material.
On Wednesday, the NCAA filed a declaration from Dan Gavitt, the association’s senior vice president for basketball. In the 15-page document, portions of which were redacted from public view, Gavitt said the trademarked terms used for the tournaments are the primary source of income for the athletics association, which it uses to cover expenses for its 92 championship events. That includes paying for student-athletes’ travel to those events.
The NCAA also receives income from corporate partnerships that, in return, get permission to use the trademarks. Gavitt’s filing showed 17 sponsors, including AT&T, Capital One, Coca-Cola, Marriott, Reese’s, and Wendy’s.
As a result of these combined promotional efforts—spanning across CCP advertising, national media exposure, NCAA-directed marketing, NCAA-owned platforms, and widespread promotion of media coverage for the Tournaments—the NCAA Basketball Marks are among the most widely viewed, recognized, and commercially valuable sporting event brands in the United States, generating substantial consumer awareness, goodwill, and media attention,” Gavitt stated.
Gambling is one industry where the NCAA has not sought an advertising partner. The governing body sued the state of New Jersey, along with America’s four major professional sports organizations to prevent the Garden State from moving forward with sports betting.
That lawsuit led to the landmark 2018 Supreme Court ruling that found the Professional and Amateur Sports Protection Act to be unconstitutional, opening the door for New Jersey and more than three dozen other states to join Nevada in legalizing and regulating sports betting.
The professional leagues have since entered into several extensive partnerships with DraftKings and other sports betting operators. Meanwhile, the NCAA has urged operators and state regulators to ban or limit wagering on college sports. For instance, NCAA President Charlie Baker succeeded two years ago in petitioning the Ohio Casino Control Commission to ban prop bets on college athletes, whom the organization said have received threats from bettors who lost money wagering on them. Several states then followed suit.
The NCAA updated its advertising and promotional guidelines in December. That seven-page document states that any “advertisements, advertisers and others who wish to be associated with NCAA events,” shall not harm student-athletes, discredit the NCAA’s values, or be detrimental to the “best interests” of college sports or universities in general. The policy does not just ban sportsbooks, it also bars other gambling entities, such as casinos, race tracks, and state lotteries.
Other advertisers blocked by the NCAA include movies rated NC-17, as well as television shows and video games that carry an equivalent rating. Tobacco products also cannot advertise during or sponsor NCAA events. The NCAA also prohibits certain alcoholic beverages, such as whiskey, from advertising. Beer, wine, malt beverage and hard seltzer ads are allowed, provided their advertising meets certain strict standards.
While the NCAA only sued DraftKings , several on social media noted other operators were also using the term March Madness on their apps, including FanDuel and BetMGM.
Both of those entities changed their verbiage over the weekend.
BetMGM featured “March Madness” on its app just prior to noon Saturday, only minutes before the first men’s round of 32 games were to take place. By Sunday, the header read “Men’s March Matchups,” a phrase BetMGM has used in the past.
John Ewing, a spokesperson for BetMGM, told Gambling Insider on Monday that the company, a joint venture between MGM Resorts International and Entain, made the decision to change the wording.
FanDuel has yet to respond to an inquiry.
As of Tuesday afternoon, DraftKings still featured a March Madness subhead on the opening screen of its sports betting app.
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