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.

Thursday, February 6, 2014

Does Fake Bo Pelini violate the real Bo Pelini's rights of publicity?

Rights of publicity protect a person's exclusive right to license their likeness to whom and on what terms they choose. This is at the heart of the NCAA student-athlete likeness antitrust litigation, because intercollegiate athletics may be the only place where this right is irrevocably transferred to the NCAA and its member institutions.

Fake Bo Pelini is a Twitter account designed to poke fun at the real Bo Pelini's sometimes surly and obstreperous nature. If the Fake Bo Pelini generates money from the use of Bo Pelini's likeness, he could be violating Pelini's rights of publicity. This does not appear to be the case.

The "Bo Pelini Foundation" is a registered trademark, but "Bo Pelini" is not. If "Bo Pelini" were a registered trademark or it was used on or in connection with goods or services, Pelini could not sue for trademark dilution, because Fake Bo Pelini is a parody account. If Fake Bo Pelini was not a parody and "Bo Pelini" were a registered trademark or used on or in connection with goods or services, then Pelini could sue for trademark dilution.