Friday, May 2, 2014

"Jameis Winston crab legs" violates the Heisman Trophy winner's rights of publicity.

In the past few days, the 2013 Heisman Trophy-winning quarterback from Florida State University, Jameis Winston, was charged with the theft of $32 worth of crab legs from a grocery store. In response an Alabama grocery store started selling "Jameis Winston crab legs." Rights of publicity have been previously discussed. An individual has the exclusive right to license his or her likeness as they see fit (unless that person is an NCAA student-athlete). Clearly, Jameis Winston did not license his likeness to be used in connection with the grocery store's crab legs. Even though the grocery store was joking, its conduct does violate Winston's rights of publicity. If sued, the grocery store would be disgorged of all profits generated from said "Jameis Winston crab legs."

Thursday, March 27, 2014

Why was the National Labor Relations Board’s ruling that college athletes can unionize limited to private institutions?

Under the National Labor Relations Act, states are not "employers." Since public schools are part of their state government, public schools are not employers under the NLRA. Since private schools are not part of their state government, they are not employers under the NLRA. The federal regulations of the NLRB explicitly provide that the NLRB will exercise jurisdictions over issues involving private nonprofit colleges and universities that have a gross annual revenue of $1M or more.

This does not mean that college athletes at public schools cannot unionize, it just means they have to do so differently. Those athletes would have to unionize under procedures for public sector employees. Some states are right to work states, which prevents compulsory union participation for public sector employees. Those employees could join the union if they wanted to do so, but they would not have to join or participate in its labor policies or goals.

On the other hand, Northwestern's college athletes will be voting within the month to determine whether they will be represented by the College Athletes Players Association. The CAPA was just recently formed. If a majority of Northwestern's athletes vote for representation, then all Northwestern athletes will be represented by the CAPA.

Wednesday, March 12, 2014

On the negligence lawsuit involving former Iowa football players injured during the rhabdomyolysis exercise scandal in January 2011.

In January 2011, 13 football players for the University of Iowa were hospitalized with rhabdomyolysis, which is the breakdown of muscle tissue leading to the release of muscle fiber contents into the bloodstream. The players suffered this condition as the result of overly strenuous workouts following a disappointing 2010 football season.

On March 10, 2014, one former player injured by "rhabdo" sued the school and State of Iowa for negligence. Unless one or more of the injured former players were in negotiation with the school before January 2013, and unless the parties agreed to waive arguments based on Iowa's statute of limitations, the player or players may lose on a technicality. Iowa Code 614.1(2) provides that personal injury lawsuits must be brought within two years. The former player's claim was initiated more than three years after the injury. Accordingly, even though the school would likely be liable for negligence, it may win because the player waited too long to file the lawsuit. That said, it is more likely that the players were previously in confidential negotiation with the school, and the parties agreed to waive any argument based on the statute of limitations.

Tuesday, March 4, 2014

What is a naked trademark license?

If you have a trademark and enter into licensing agreements where you do not oversee and monitor the manner in which your mark is used by the licensees, you risk a "naked license." Having a naked license means your trademark is no longer valid, because it no longer is source identifying.

If you have a mark and want to license it to others, make sure you enter into licensing agreements negotiated at arms' length. If you let other companies use your mark without conditions, it will result in a naked license.

Wednesday, February 26, 2014

Student-athlete likeness litigation appears headed to trial.

Interestingly, the presiding judge gave a scathing reply to the NCAA's argument that paying players would affect competitive balance: "Maybe you could enforce more competitive balance by having coaches' salaries addressed."

Monday, February 17, 2014

Indemnity clauses are not always for the faint of heart.

In certain circumstances, indemnity clauses can be pretty frightening. An indemnity clause requires one party to bear responsibility for any loss or damage incurred by another party. These provisions are commonly found in contracts dealing with big companies and/or smaller companies with sophisticated legal counsel. You should always be careful when signing a contract requiring indemnification. Activation of an indemnity clause when loss or damage occurs could devastate your personal life and/or bankrupt your business.

With an indemnity clause, not only are you responsible for your own loss or damage in connection with a contract, you are responsible for another party’s loss or damage in connection with the same contract. Sometimes, indemnification makes sense, like when one party has little involvement with a business relationship involving a second or third party, or when a party provides one component in a complex mechanism. If fairness suggests that a party should not be responsible for loss or damage in connection with a contract, an indemnity clause protecting that party is proper. But if fairness suggests a party should be held responsible for loss or damage in connection with a contract, indemnification is improper.

Thursday, February 13, 2014

Wordmark trademarks and design mark trademarks.

Service marks, certification marks and collective marks are regularly called "trademarks." Each of these categories of marks contain wordmarks and design marks. A wordmark does not contain a logo or design. It is simply the word being claimed as a trademark. A design mark contains the logo or design of a mark. For instance, "Nike" is a wordmark. The Nike "swoosh" is a design mark. Both wordmarks and design marks are protectable under trademark law. Getting federal trademark protection on your company's wordmark does not mean your design mark is protected. Getting protection on your design mark does not mean your wordmark is protected. You would need to register both to protect both.

One design mark might be confusingly similar to another design mark but the wordmarks of the two might be dissimilar. Likewise, a wordmark might be confusingly similar to another wordmark but the design marks of the two might be dissimilar.