DraftKings does not have to stop using March Madness and similar NCAA trademarks as the lawsuit plays out.
The request for a temporary restraining order ticks three of the four necessary boxes, the U.S. District Court for the Southern District of Indiana ruled Thursday. The NCAA has “not shown a likelihood of irreparable harm” given how long it took to file the lawsuit, considering DraftKings has been using the terms for years, the court said.
That means DraftKings can continue using the terms likely through the end of the men’s and women’s March Madness tournaments with the men’s final scheduled for next Monday, though it could still come, the court noted.
“With further discovery the NCAA may be able to show they are entitled to a preliminary or permanent injunction, and those claims remain pending,” said the ruling.
DraftKings: NCAA suit like ‘Casablanca’ scene
Court filings rarely stray from a legal tone, so DraftKings’ counsel taking a sarcastic shot at the NCAA just three paragraphs into its opposition against the temporary restraining order was a bit surprising.
The response cited the scene in “Casablanca” where Captain Louis Renault is forced to shut down Rick’s nightclub (emphasis in original):
“The timing of this lawsuit underscores its lack of legitimacy,” the opposition reads. “In the middle of March Madness, the NCAA rushed to court last Friday night, professing itself ‘shocked—shocked to find that gambling is going on in here!‘ Like Captain Renault in Casablanca, the NCAA feigns surprise at conduct it has long known about and tacitly accepted.
“And, like Captain Renault, the NCAA profits from the very betting activity it now claims is intolerable.”
The NCAA’s claim of irreparable harm is “affirmatively contradicted by its own business conduct,” the opposition stated. DraftKings noted the NCAA’s commercial deal with Genius Sports to use its data for sports betting and its year-long delay in bringing the lawsuit.
“That unexplained delay alone defeats any claim to emergency relief,” reads the opposition. “A party that knowingly permits the challenged conduct for years cannot credibly assert that immediate judicial intervention is necessary to prevent irreparable harm.”
Court: using generic terms ‘not ambiguous’
The court is not buying the excuse that not using the terms would be confusing.
“DraftKings argues that their use is entirely referential and there is no substitute for the terminology DraftKings uses. DraftKings argues that the NCAA’s proposed alternatives—”NCAA Tournament” or “Division I” “college basketball” tournament—are not only cumbersome but ambiguous as multiple NCAA tournaments occur simultaneously,” the ruling read. “The Court disagrees.”
NCAA asks others to stop using trademarks
It was not entirely clear why the NCAA only targeted DraftKings in its lawsuit considering how many other sportsbook brands use the same trademarks.
DraftKings made it clear to the court that it was far from the only betting operator to use March Madness trademarks. A DraftKings filing from Daniel Murphy, a manager at StoneTurn Group which provides expert services to law firms, included multiple examples of other operators using the trademarks in their apps, on their websites and on social media.
The NCAA noted it has since asked those operators to stop.
“In the NCAA’s declaration filed this morning, their Associate Counsel states that they have now contacted all of the above betting platforms to execute a cessation of the uses described above (see Filing No. 56),” reads Thursday’s ruling. “At the hearing, NCAA’s counsel reported that some of the examples are cached images that are no longer being used and some were just random social media posts by individuals.”
