Hank's IP Brew — Issue #8

Howdy, y'all.

This week: the NCAA took a gambling company to court to protect three of its most famous brand names — and a federal judge said not so fast. And separately, the White House decided it's done watching college sports sort out NIL on its own.

Let's go.

The NCAA has owned the trademark on "March Madness" for decades. Same with "Final Four" and "Elite Eight." These are among the most recognized sports brand names in the country, worth hundreds of millions in licensing revenue.

So when DraftKings — one of the largest online sports betting platforms in the U.S. — started using all three terms to promote its bracket contests, the NCAA sued. And it asked for a temporary restraining order: an emergency court order requiring DraftKings to stop immediately, before the full case could be litigated.

The judge said no.

Here's why the denial matters more than it might appear.

To get emergency injunctive relief, you have to clear a real threshold. Courts require you to show, among other things, that you'll suffer irreparable harm if the order isn't granted — meaning harm that a damages award later couldn't adequately fix. The NCAA argued that DraftKings was diluting its brand and confusing consumers. The court's response: that may prove to be true, but you haven't shown me why money damages couldn't make you whole if it does.

The NCAA couldn't clear that bar. The underlying lawsuit continues, and the NCAA may yet win on the merits. But losing the TRO is notable on its own — especially because the NCAA moved quickly and still couldn't make the emergency case.

There's also a deeper issue lurking here: when does using a famous trademarked phrase become infringement versus just describing the tournament everyone's watching? DraftKings will argue it wasn't passing off the NCAA's brand — it was using commonly understood sports terms to let users know what the brackets were about. That's called descriptive or nominative fair use, and courts sometimes buy it. "The Final Four" means something specific in American culture, and that meaning doesn't belong entirely to any trademark owner, however long the registration has been on file.

The practical takeaway for creators: A trademark registration is a real asset, but it's not an on/off switch for enforcement. Getting emergency relief requires showing immediate, irreparable harm — not just that someone is using your mark. If someone is infringing your brand, document the harm early and act quickly. The longer infringement goes on without a response, the harder it gets to argue that you need emergency relief rather than a damages check at the end of the case.

Trademark strength matters too. Highly descriptive or generic terms — even registered ones — face more resistance in court than coined or arbitrary marks. "Final Four" describes a thing. "Velcro" doesn't describe anything in the physical universe. The further your brand is from the thing it describes, the easier it is to defend.

On April 3 — Final Four weekend, which was either symbolically appropriate or a deliberate trolling of the NCAA, depending on your read — President Trump signed his second executive order targeting college sports. The order, titled "Urgent National Action to Save College Sports," lays out transfer limits, eligibility caps, restrictions on NIL compensation, and the threat of withholding federal funding from schools that don't comply.

Here's what it actually says, and what it actually can do.

What the order directs:

On transfers, the EO would roll back the anything-goes transfer market that's been in place since a federal judge struck down the NCAA's one-transfer policy in 2024. Under the new framework, undergrads get one unrestricted transfer with immediate eligibility. A second transfer costs you a year of competition. Graduate students get one additional free transfer after earning their degree.

On eligibility, the order installs a clean five-year total cap — no exceptions, no waiver process. That ends years of case-by-case waiver battles and the litigation that followed when waiver denials got challenged in court.

On compensation, the order limits NIL payments and blocks schools from using federal funds for NIL, revenue-sharing, or coaching compensation — a significant shot across the bow for programs whose compliance offices have been engineering sophisticated workarounds to the $20.5 million House settlement cap.

What it can't do:

An executive order can't override state law, and nearly half the states have passed their own NIL statutes. It can't provide the antitrust exemption that college sports leaders actually need to stop the lawsuit tsunami — only Congress can do that. It also can't change existing court rulings. Several judges have already blocked Trump administration orders in other domains; this one is expected to face similar challenges. Most provisions don't take effect until August 1, which means there's time for litigation before anything actually kicks in.

Sources who contributed to the order told The Athletic before it was released that its real purpose was to push Congress to pass the SCORE Act — the federal bill that would provide antitrust protections, preempt state NIL laws, prevent athletes from being classified as employees, and establish agent licensing standards. The bill has been stalled in the House since last summer and faces an even harder path in the Senate, where it would need 60 votes.

What athletes should be thinking about right now:

The August 1 effective date is real even if legal challenges are coming. If you have a transfer decision pending, the one-transfer cap is relevant to your planning whether or not it survives in court — schools and conferences will likely tighten compliance ahead of the deadline regardless of the litigation outcome.

On NIL, the prohibition on using federal funds for compensation arrangements will put pressure on schools to restructure the deals they've been engineering through collectives and revenue-sharing workarounds. If your deal flows through a school-affiliated entity, understand how that entity is funded and what compliance exposure it creates for the school.

The SCORE Act implications matter even though the bill hasn't passed. The agent licensing provisions in SCORE — which would require anyone advising athletes on NIL to be properly registered — are the direction federal regulation is headed. If your advisor isn't currently operating under a sports agent statute, the window to get that right is narrowing.

See you next time,

Hank

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