1. chapter 9 Intellectual Property Law

2. Sources of Revenue in Sport Tangible sources –Merchandise –Tickets –Concessions Intangible sources –Player or team name and likenesses –Sponsorship of events and facilities –Sale of merchandise with particular names and logos

3. Definition of Intellectual Property Property rights over artistic and commercial assets –Musical and literary works –Discoveries and inventions –Words, phrases, symbols, and designs used in commerce Provide creators with an economic incentive to develop works

4. Key Content Areas Trademark Copyright Right of publicity Patents

5. Trademark Any word, name, symbol, or device that an organization uses to identify and distinguish its services from the services of another organization and to indicate the source of the service

6. Trademark Law Trademark Act of 1946, known as the Lanham Act, governs the law of trademarks and their registration and provides causes of action that protect trademark rights from infringement Purpose is to protect the owner of a mark by preventing others from using the mark without permission or in a way that will cause confusion

7. Functions of a Trademark Identifies a sellers goods and distinguishes them from those sold by others Signifies that goods come from one particular source Indicates that products are of a certain quality Advertises, promotes, and assists in selling the particular goods

8. Uniqueness of Trademarks Arbitrary or fanciful marks –Inherently distinctive because they describe the source of a good and not the actual good itself –Example is Nike Suggestive marks –Require some creativity to understand the product that they describe –Example is Hot Pockets Descriptive mark –Describes a characteristic or quality of a good or service –Not protected under trademark law –Example – Screech golf balls

9. Uniqueness of Trademarks (continued) Generic mark –Marks that are so common they cannot receive federal trademark protection –Example is Jell-O Collective mark –Mark used by the members of a cooperative, association, or other collective organization to indicate membership in that organization –Example is NBA Service mark –Mark used in the sale of advertising or services to identify and distinguish the services of one entity from the services of others –Example is NCAA because it stands for events and services related to the National Collegiate Athletic Association

10. Ownership of Trademarks Must be first to use the mark in trade Must make continuous, uninterrupted use May federally register the mark but this is not required (common law use allowed)

11. Trademark Infringement Definition: When someone who is not a trademark owner engages in some unauthorized use of a trademark that is likely to cause consumers to be confused or deceived about who really owns the trademark Elements of claim 1. Trademark owner must show that she has used, and preferably registered, the mark 2. Must demonstrate that the other partys use of the mark is likely to cause confusion or to deceive consumers about who is the true source of the trademark. Dallas Cowboy Cheerleaders, Inc. v. Pussycat Cinema, Ltd. Boston Athletic Association v. Sullivan

12. Factors That Determine Infringement Strength of the mark Similarity between the marks Evidence of actual confusion Consumer sophistication Quality of the alleged infringers products Similarity between the products and the ways they are sold Likelihood that the owner will expand the use of his own marks on other products in the future Whether the alleged infringer acted with good faith

13. Defenses to Claim of Trademark Infringement Fair use: Where a trademark is used fairly and in good faith only to describe the goods or services involved (e.g., logo used in newscast) – WCVB-TV v. Boston Athletic Association Parody – Cardtoons, L.C. v. Major League Baseball Players Association Noncommercial use: Artistic transformative use (e.g., Andy Warhols Campbells Soup paintings) Agreement or license by the trademark holder consenting to use by another

14. Trademark Law: Dilution Dilution is the lessening of the capacity of a famous mark to identify and distinguish goods or services. –Blurring: A party uses or modifies a mark, resulting in the weakening of the original mark to identify goods. –Tarnishment: The mark is used in association with unwholesome or shoddy goods and services. Dream Team Collectibles, Inc. v. NBA Properties, Inc. – use of NBA logo likeness for SDE Sports, Drugs, & Entertainment ad

15. Olympic Marks Special level of protection under federal law Covers the interlocking rings, the word Olympic No proof of likelihood of confusion is required; improper use is enough San Francisco Arts & Athletics, Inc. v. USOC

16. Licensing License: A right granted by an owner, known as the licensor, to a third party, the licensee, which permits the licensee to associate his or her goods, services, or business with the logos, names, and mascots of the licensor. Granting a license creates a contractual relationship between the licensor and the licensee In sports: –Professional leagues and unions have licensing programs. –Some players license their own names and likenesses. –The NCAA registers its own marks. –Schools license their marks.

17. Nicknames Trademark protection can be denied if a mark is shown to be immoral, deceptive, scandalous, or disparaging –Are Native American caricatures disparaging? –Fighting Sioux –Washington Redskins Harjo et al. v. Pro-Football, Inc. – suing Washington Redskins

18. Nicknames (contd.) Under a controversial policy introduced by the NCAA in 2006, NCAA schools are prohibited from displaying hostile and abusive racial, ethnic, or national origin mascots, nicknames, or imagery at any of its championships. Institutions that currently use Native American nicknames are required to take reasonable steps to conceal the nicknames or may be prohibited from wearing them altogether. In 2004, the NCAA asked 33 schools to review their use of Native American mascots, and 15 immediately complied.

19. Internet Domain Names Cybersquatting: Registering a domain name similar to someones registered trademark and demanding payment for the trademark holder to buy back that name Uniform Dispute Resolution Process –UDRP is administered by the Internet Corporation for Assigned Names and Numbers (ICANN). –Trademark owner must allege that its mark is identical or confusingly similar to the mark used by the cybersquatter and that the cybersquatter registered and used the domain name in bad faith.

20. Copyright Law Unlike trademark law, copyright law does not protect intangible ideas; rather, it protects ideas or other items that can be identified on tape, on paper, or on screen.

21. Copyright A right granted by statute to the author or creator of a literary or artistic work that provides the author with the exclusive right to reproduce, publish, or sell the production. Not limited to authors or creators. A nonauthor can obtain these rights by agreement.

22. Works That Are Copyrighted Books and other literary works Music and musical works, including any accompanying words Dramatic works such as plays, including any accompanying music Pantomimes and choreographic works Pictorial (photographic), graphic, and sculptural works Motion pictures and other audiovisual works Sound recordings Architectural works

23. Exclusive Rights of Copyright Owner Reproduce the copyrighted work Prepare derivative works based on the copyrighted work Distribute copies to the public by sale or other transfer of ownership or by rental, lease, or lending Perform the copyrighted work publicly Display the copyrighted work publicly Perform the copyrighted work publicly by means of a digital audio transmission

24. Copyright Infringement Unauthorized use of copyrighted material in a way that violates one of the owners exclusive rights in the copyright Punishment includes fines and injunctions

25. Right of Publicity Right of any person to control the commercial use of his or her identity Not produced under federal law Many states have recognized the right by common law or included it in their state statutes Protects athletes and celebrities marketable identities from commercial misappropriation by recognizing their right to control and profit from the use of their names and nicknames, likenesses, portraits, performances (under certain circumstances), biographical facts, symbolic representations, and so on

26. Statistical Information A major issue is whether the use of names and statistics for fantasy sports constitutes a misappropriation –CBC v. MLBAM case: Appeals court ruled such information is protected, but First Amendment takes precedence

27. Patent Law A document provided by the federal government that gives the owner of an invention the right to exclude others from reproducing the patented invention for 20 years Specifically describes the invention in great detail Invention is patentable if it is a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof

28. Patents in Sports Equipment used to play the sport (balls, bats, gloves, clubs) Designs for the apparel worn (shoes, shirts, jackets, cleats) Certain games themselves (the Arena Football League owns a patent for that style of football)

29. Patent Infringement Action whereby someone other than the patent holder (without permission) makes, uses, sells, offers to sell, or imports patented material

30. Ambush Marketing Situation where one company creates advertising or promotional campaigns that confuse consumers and wrongly imply that the company is an official sponsor of an event –Harms companies that are official sponsors by weakening their relationship with the event –Found with large-scale events such as the Super Bowl or Olympics