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I. REVIEW
II. MARKETING MGMT I Trademarks Copyrights
III. WRAP-UP
REGULATING PARTICIPATION
Private clubs: “Truly private” test
Schools: Must comply Title IX
Drug testing: 4th AM search & seizure
Only state actors are subject to 4th Amendment
NCAA may be conduct drug testing without considering 4th AM challenge
MARKETING MGMT: GENERAL
Communication b/w org. & consumers
Intellectual property law: For intangible values
Trademarks* Copyrights* Patent Trade secret Right of publicity* Unfair trade practice law (FTC & states)*
EXAMPLES
WHY TRADEMARK LAW? (POLICY)
To protect consumers from confusion & deception
To encourage consistent product & service quality
To protect owners’ property rights
HOW TO CREATE TRADEMARK RIGHT
Right from use: Under common law
Used in commerce to identify a product or service
Only within a limited geographical area Different from right under Lanham Act
(below)
Right from registration: Under Lanham Act File TM registration with USPTO Can maintain enhanced TM rights (e.g.,
nationwide TM right)
DISTINCTIVENESS
To be protected by law, a mark must be “distinctive”
3 levels of marks
Inherently distinctive marks (OK) Descriptive marks (OK only if it has 2nd
meaning) Generic marks (Never become TM)
INHERENTLY DISTINCTIVE MARK (OK)
Fanciful mark
No meaning at all by itself Examples: “Xerox,” “Google,” “Pro V1”
Arbitrary mark
Has a meaning but not describing the product Examples: “BGSU Falcons,” “New York
Yankees,” “Blue Diamonds (nuts)”
INHERENTLY DISTINCTIVE MARK (OK)
Suggestive mark
“Indirectly” describes product at issue
Consumer must engage in mental process in order to associate the mark with the description of the product
Examples: “Nike,” “Under Armour,” “Titleist,” “Greyhound”
DESCRIPTIVE MARK (ONLY IF IT HAS 2nd MEANING)
Describes product or service, geographical location, or a person’s surname
No TM right granted w/o secondary meaning
No secondary meaning: “Aerobics (fitness club),” “Lone Star State (salsa),” “Dixie (BBQ),” “Chang (Chinese)”
Has secondary meaning: “McDonalds,” “Zamboni”
DESCRIPTIVE MARK (ONLY IF…)
Requirement of secondary meaning
Consumer must recognize the mark as an indication of its source in addition to the primary meaning
Lanham Act § 1052: Exclusive & continuous use for 5 years presumed to have secondary meaning
DESCRIPTIVE MARK (ONLY IF…)
How to determine suggestive or descriptive
Amount of imagination consumer must exercise
Whether competitors must use the term to describe the product (e.g., “Undershield”)
GENERIC MARK (NO WAY!)
Never become TM even if investing $$$ & time
Examples “Biggest Game Pizza” “Arena” “King Size Bed”
LIKELIHOOD OF CONFUSION CLAIM UNDER LANHAM ACT 43(a)
False designation of origin in connection with goods, services, or their containers
That are likely to cause confusion in the market
As to the affiliation, connection, or association of [the producer or seller] with another person OR
As to the origin, sponsorship, or approval of his or her goods, services, or commercial activities
LIKELIHOOD OF CONFUSION: FACTORS CONSIDERED BY COURT
Strength of plaintiff’s mark
Similarity of the marks
Similarity of products or services
Similarity of target markets
LIKELIHOOD OF CONFUSION: FACTORS CONSIDERED BY COURT
Similarity of marketing channels
Sophistication of purchasers
Evidence of actual confusion
Defendant’s intent (i.e., good faith use?)
Univ. OF Georgia V. LAITE
REMEDY
Injunction: May not use the mark anymore
Monetary recovery
In case of counterfeit (≠ likelihood of confusion)
Intentionally use others’ mark Same as larceny All civil damages + criminal prosecution
SUBJECT MATTER: EXAMPLES
Literary works (e.g., SI) Musical works (e.g., team logo song) Dramatic works (e.g., movie) Choreographic works (e.g., cheerleading) Graphic works (e.g., player illustrations) Sound recordings (e.g., radio broadcast) Architectural works (e.g., Fenway Park)
PURPOSE OF COPYRIGHTS
Two competing interests
Giving limited monopoly to encourage creative works
Limiting the exclusive right for public use
Duration of copyrights
Created before 01/01/1976: 95 yrs from creation
Created after 01/01/1976: Life of author + 70 yrs
REQUIREMENTS (ORIGINALITY + FIXATION)
Originality: Must have minimal originality
Collection of data (e.g., phone book) No Live sport event (e.g., NBA v. Motorola) No Game rules in public domain (e.g., tic-tac-toe)
No
Fixation: Must be put into tangible form
Event plan (idea) for U.S. v. worldwide HS BB No
When sport games are recorded OK
NBA V. MOTOROLA
Fact: Pager displays NBA games in progress (recorded game facts & transmit to customers)
Rule: Sport game itself is not copyrightable
Rationale Games are not “authored” Copyrights on tactics will stifle sports But once creative labor is added,
copyrightable Here Motorola used only facts
TRADEMARKS: CREATION
Inherently distinctive marks (OK) Fanciful Arbitrary Suggestive
Descriptive marks: (OK only if 2nd meaning)
Generic marks (Never)
TRADEMARKS: INFRINGEMENT
Lanham Act 43(a): No false designation of origin
Likelihood of confusion claim 8 factors Injunction or $$$ Counterfeit criminal prosecution
COPYRIGHTS
Creation of copyright (2 requirements) Originality: Must have some creativity Fixation: Idea must be put into a tangible form
Copyright infringement (NBA v. Motorola) Sport game itself is not copyrightable But once creative labor is added, it is
copyrightable