chapter 18 The Legal Aspects of Sport Marketing

Objectives To introduce the key legal concepts and issues that affect the marketing of the sport product To inform sport marketers about the need, and the methods, to protect intellectual property associated with the creation of a sport product or event, or with ideas developed out of sport sponsorship and licensing programs To examine the legal limits of sport marketing and promotion so sport marketers can avoid legal liability

What Is Intellectual Property? Primary goal of intellectual property law is to reward invention, ingenuity, and creativity in an effort to maintain an open and competitive marketplace. It is made up of three areas: 1. Trademarks 2. Copyrights 3. Patents

Trademark Law A trademark is a word, name, symbol, or device used by a person, generally a manufacturer or merchant, to identify and distinguish its goods from those manufactured and sold by others, and to indicate the source of the goods (see endnote 5 in book). Types of trademarks: –Trade dress –Service mark –Collective mark

Overview of Trademark Law Trademarks identify the source or origin. Trademarks protect consumers from confusion or deception. A trademark is used to designate a consistent level of quality. A trademark represents the goodwill of the owner’s products or services. Trademarks signify a substantial advertising investment.

Types of Trademarks Fanciful: Distinctive Arbitrary: Common term associated with entity Suggestive: Connotes something about product Descriptive: Commonly used word or phrase that is difficult, although not impossible, to protect Generic: Commonly used word or phrase that is never entitled to trademark protection

Trademark Infringement Traditional trademark infringement: Confusion or mistake or used to deceive False designation of origin Dilution

Determining Trademark Infringement The strength of the trademark The degree of similarity The similarity of the products involved The market channels involved The distribution channels involved The intent of the defendant in adopting the trademark The sophistication of the potential consumers The evidence of actual confusion

Other Issues Related to Infringement Reverse confusion False designation of origin Dilution Abandonment Fair use defense Genericness Functionality Cybersquatting

Ambush Marketing When a company capitalizes on the goodwill of an event by using tactics to imply an official association with that sport event The larger and more popular the event, the more often ambush marketing arises

Copyright Law and Sport Marketing Copyrights, for instance, protect the music that is played during games and requires sport marketers to seek approval through ASCAP, which protects musicians’ copyrights in their works.

Works of Authorship That Are Protected Literary works, such as books and stories Musical works, including any accompanying words Dramatic works, including any accompanying music Pantomimes and choreographic works Pictorial, graphic, and sculptural works Motion pictures and other audiovisual works Sound recordings Architectural works

Copyright Act Grants a Copyright Owner the Right To reproduce and distribute copies or sound recordings of the copyrighted work to the public by sale, rental, lease, or lending To prepare derivative works based on the copyrighted work To perform the copyrighted work publicly (literary, musical, dramatic, and choreographic works; pantomimes; motion pictures, and the like) To display the copyrighted work publicly (literary, musical, dramatic, and choreographic works; pantomimes; and pictorial, graphic, or sculptural works, including individual images of a motion picture or other audiovisual work) To perform the copyrighted work publicly by means of a digital audio transmission (sound recordings)

Copyright Infringement 1.The purpose of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes 2.The nature (character) of the copyrighted work 3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4.The effect of the use on the potential market for, or value of, the copyrighted work Copyright infringement occurs when someone makes an unauthorized use of a copyrighted work. Courts consider four factors when determining whether copyright infringement has occurred:

Defenses to Copyright Infringement The fair use doctrine: Criticism Comment News reporting Teaching (including multiple copies for classroom use) Scholarship Research

Patents May be granted to anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement. A patent cannot be granted for a mere idea, only for the actual invention or complete description of it (see endnote 106 in book). Patent lasts 20 years. After patent runs out, anyone can use technology or make product.

The Right of Publicity and Invasion of Privacy The right of privacy protects against intrusion on one’s seclusion, the misappropriation of one’s name or likeness, unreasonable publicity, and placing one in a false light. The right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of his or her persona.

Emerging Issues Global protection of intellectual property Ownership of “real time” information and player statistics