Your Brand Isn’t a Cultural Vibe. It’s Intellectual Property.

Every March, thousands of marketers commit a completely avoidable legal error. They slap “March Madness” on a promotion, send it out the door, and assume that because the phrase is everywhere, it must be fair game.

It isn’t.

The NCAA filed for a temporary restraining order in federal court to stop DraftKings from associating its sports betting products with protected NCAA marks – including “March Madness” and “Final Four.” DraftKings isn’t some scrappy startup that didn’t know better. They have lawyers. Lots of them. And they still ended up in court.

Which tells you something about how easy it is to get this wrong, or just how much DraftKings doesn’t care and is willing to take the legal hit, as part of the cost of doing business – more on that tomorrow.

The NCAA has been aggressive about its trademarks for years, and that’s the whole point. A trademark you don’t defend, you eventually lose. The NCAA sued a car dealership for running a promotion called “Markdown Madness.” A car dealership. The NCAA wasn’t looking to make an example of a small business. They were protecting a mark worth hundreds of millions of dollars, and they can’t make exceptions for entities they like.

This is all happening while the NCAA brand is uniquely vulnerable and under assault. Look no further than bipartisan legislation currently being debated in Congress that would literally nationalize college sports and drive the value of the NCAA brand to zero.

A reputational aside – operations must drive communication and reputation. From an operational perspective, protecting your intellectual property by going after those that borrowed their language is the right thing to do, hard stop. From a communications and reputational perspective, it’s not as simple. Going after a charming little social media campaign of a small, local business reads much differently than going after a $10 billion betting enterprise.

The line between cultural moments and intellectual property is a lot thinner than most marketing teams realize. Phrases go viral. They enter the lexicon. Competitors borrow them. Eventually someone argues the mark has become generic – and sometimes they win.

The DraftKings situation is a good reminder that brand protection isn’t a legal formality you handle once at launch. It’s active. It’s ongoing. And the moment you assume everyone understands the rules, someone will remind you that they don’t.

Sports betting companies are spending heavily to associate their brands with the biggest moments in sports. The NCAA’s marks are some of the most recognized in American culture. That combination was always going to produce litigation. The only question was when.

The harder question, and the one most organizations avoid asking, is this: When did you last audit what you own and how well are you protecting it? Not just registered marks, but the phrases, slogans, and language that define how your customers recognize you.

If the answer is “we’d have to check with legal,” you might want to do that before the next big cultural moment rolls around.

Brand protection may not be glamorous work, but it’s critical and can avoid creating unforced errors. Nobody throws a party for the in-house counsel who sent the cease-and-desist letter. But the companies that treat their marks like property worth defending tend to still own those marks a decade later. The ones that treat them like a cultural byproduct tend to be filing new trademark applications because they let the old marks slip.

While a federal judge denied the NCAA’s push for a temporary restraining order, the case continues for now. I suspect the NCAA and DraftKings will settle. These things usually do. But the lesson isn’t about the outcome of one lawsuit. It’s a reminder never to assume your brand is too big or too obvious to need protection.

Check back tomorrow to see our take from DraftKings side of the bracket.