Legality here refers mostly to intellectual property and copyright laws. Heeere we go.
The three types of protection here are (with the example of the Spalding ball):
- Copyright – original work of authorship (on the info on the packaging)
- Trademark – protects unique words, names, symbols, etc (the product name)
- Patent – protects new inventions (the technology of the ball)
Five functions of trademark law:
- Identify the source or origin
- Protect consumers
- Designate a consistent level of quality
- Represent goodwill between the company and customer
- Substantial advertising investment
For national trademark protection, it must be registered with the USPTO, which also resolves disputes. The federal registration is not mandatory to establish ownership, but it is very helpful (if you have the time to put into it….)
The Lanham Act allows an individual to hold a trademark if their intention is to do commerce with it, within a reasonable period. When creating a new trademark, there is a consultancy available to determine if it’s already taken. It also has a public library of its trademarks. http://www.uspto.gov
When a new trademark is created, it is classified by the USPTO accordingly:
- Fanciful – totally unrelated to reality and stands out through not even being spelled normally
- Arbitrary – normal English but set apart due to distinctiveness – e.g. Arena Football League
- Suggestive – suggests something about the product, though is not as distinctive – Nike and Powerade are examples
- Descriptive – a basic description, hard to protect by law
- Generic – not protectable at all
Can also deny a trademark for disparaging, slanderous, immoral, deceptive, scandalous, or related to any branch of the US Govt or any President
Descriptive logos can gain protection if through popularity they gain a “second meaning” in the mind of the consumer body. For example, when the Seahawks got big, someone was selling jackets with their colors, and the Seahawk colors had such recognition that they gained secondary meaning and were entitled to protection.
Some interesting IP lawsuit examples here including LSU vs Smack Apparel and sport artist Daniel Moore painting Alabama players
Trademark Infringement lawsuits: the essential nature of the court’s decision will rest on protecting the consumers above all (being sure their quality of material is as guaranteed), so the decision rests on the so-called Polaroid Test:
- Strength of Trademark (is it fanciful, arbitrary, suggestive, descriptive, and how many secondary meanings have been acquired?)
- Degree of Similarity between plaintiff product and defendant knockoff
- Similarity of the Products involved
- Market channels involved (target demographic same?)
- Distribution channels involved (sell in the same place?)
- Intent of defendant (trying to confuse consumers or show some false sponsorship?)
- Sophistication of the potential consumers (are you actually trying to fool them, and are they likely to be actually fooled?)
- Evidence of actual confusion (consumer surveys used to establish this evidence)
Can also sue specifically for False designation of origin, or making people believe your material comes from another source, like the official team or w/e. A major case was the Dallas Cowboys Cheerleaders suing the pornographic film Debbie Does Dallas because the Cowboys Cheerleaders uniforms had acquired secondary meaning
Dilution or tarnishing of a trademark is also grounds for lawsuit. This seems to only really work if you’re an international supercompany though. Go figure.
Defenses to infringements claims:
- Abandonment (though if you’re getting sued, guess it wasn’t abandoned)
- Fair Use Defense (e.g. the word Olympics can’t be trademarked)
- Genericness (aspirin, cellophane, and trampoline were once all trademarks and now public use)
- Functionality
There’s a huge two-page section on Copyrights and Sporting Events which frankly doesn’t interest me right now.
Communications: Nike was sued for sending out a letter to newspapers and universities regarding allegations against them, and the letter was found to be commercial speech, which is held to a higher standard of truthiness than other forms of communication.
AMBUSH MARKETING: Not really relevant to my pursuits but interesting how far some people go to try and cash in…
Nicknames have commercial value even without being trademarked
There’s a whole section on promotion law, about how anything that includes three elements (the chance, the prize, and the consideration) is a lottery, and normally only states can run lotteries, so sweepstakes have to have an alternative method of entry (AMOE) that is free in order to make the consideration not mandatory.
Emerging Issues By Headline:
- Athletes’ Use of Social Media
- Athletes Trademarking Names and Slogans
- Use of Current and Former Student-Athletes Likenesses in Video Games
- Hulk Smash the NCAA