Sports Management
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SpMgt577Ch9Notes.pptx
Intellectual Property Law
Chapter 9
Chapter Objectives
After exploring the chapter and other readings on intellectual property law and sports, you should know the following:
The areas of intellectual property law that apply to sport
The types of trademarks that are used in the sport industry
Ways that a sport organization can protect itself when its trademarks, copyrights, or patents are used by others who are not authorized to do so
The value that athletes have in their personal right of publicity
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 names and logos
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
Key Content Areas
Trademark
Copyright
Right of publicity
Patents
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
Trademark Law
Trademark Act of 1946 (aka 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
Functions of a Trademark
Identifies a seller’s goods and distinguishes them from those sold by others
Signifies that goods come from one source
Indicates that products are of a certain quality
Advertises, promotes, and assists in selling the goods
Uniqueness of Trademarks
Arbitrary or fanciful marks
Inherently distinctive because they describe the source of a good and not the actual good itself
Example: Nike
Suggestive marks
Require some creativity to understand the product that they describe
Example: Hot Pockets
Uniqueness of Trademarks
Descriptive mark
Describes a characteristic or quality of a good or service
Not protected under trademark law
Generic mark
Mark that is so common that it cannot receive federal trademark protection
Example: Jell-O
Uniqueness of Trademarks
Collective mark
Mark used by the members of a cooperative, association, or other collective organization to indicate membership in that organization
Example: NBA
Service mark
Mark used in the sale of advertising or services to identify and distinguish the services of an entity from the services of others
Example: NCAA (stands for events and services related to the National Collegiate Athletic Association)
Ownership of Trademarks
Must be first to use the mark in trade
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Must make continuous, uninterrupted use
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May federally register the mark but not required (common law use allowed)
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Trademark Infringement
Definition: when someone who is not a trademark owner engages in an 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
Trademark owner must show that he or she has used and preferably registered the mark.
Trademark owner must demonstrate that the other party’s use of the mark is likely to cause confusion or to deceive consumers about who is the true source of the trademark.
Factors That Determine Infringement
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Strength of the mark
Similarity between the marks
Evidence of actual confusion
Consumer sophistication
Quality of the alleged infringer’s 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 in good faith
Defenses to Claim of Trademark Infringement
Fair use
Trademark is used fairly and in good faith only to describe the goods or services involved (e.g., logo used in newscast)
Noncommercial use
Artistic transformative use (e.g., Andy Warhol’s Campbell’s Soup paintings)
Parody
Agreement or license by the trademark holder consenting to use by another
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Dilution
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.
Olympic Marks
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Special level of protection under federal law
Covers the interlocking rings, the word Olympic
No proof of likelihood of confusion; improper use is enough
Licensing
A right granted by an owner, known as the licensor, to a third party, the licensee
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
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Licensing 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.
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Internet Domain Names
Cybersquatting
Registering a domain name similar to someone’s registered trademark and demanding payment for the trademark holder to buy back that name
Uniform Dispute Resolution Process (UDRP)
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.
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Copyright Law
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Protects ideas or other items that can be identified on tape, on paper, or on screen
Does not protect intangible ideas
Copyright
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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)
Works That Are Copyrighted
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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
Exclusive Rights of Copyright Owner
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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
Copyright Infringement
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Unauthorized use of copyrighted material in a way that violates one of the owners’ exclusive rights in the copyright
Punishment includes fines and injunctions
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.
Right of Publicity
The tort collides with First Amendment free speech
Courts have to balance ROP with First Amendment
In Re NCAA Student Athlete Name & Likeness Licensing Litigation
Resulted in $40 million settlement for student-athletes for the unauthorized use of their identities in EA Sports video games
Right of Publicity
Protects athletes’ and celebrities’ marketable identities from commercial misappropriation
Recognizes their right to control and profit from the use of the following:
Names and nicknames
Likenesses
Performances (under certain circumstances)
Biographical facts
Symbolic representations
Statistical Information
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A major issue is whether the use of names and statistics for fantasy sports constitutes a misappropriation
C.B.C. Distribution v. MLB Advanced Media
Appeals court ruled such information is protected, but First Amendment takes precedence
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 detail
The invention is patentable if it is a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof
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Patents in Sports
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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)
Patent Infringement
Action whereby someone other than the patent holder (without permission) makes, uses, sells, offers to sell, or imports patented material
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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
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