All about trademarks.

I have written about trademarks in a number of previous posts. For reference, here they are:

- Introduction to trademarks.
- Introduction to trademarks, part 2.
- On deceptive and deceptively misdescriptive trade names.
- Deceptive and deceptively misdescriptive marks clarified.
- More clarification on deceptive and deceptively misdescriptive trademarks.
- On primarily geographically misdescriptive trade names.
- Secondary meaning in trademarks.
- The conflict between U.S. trademark law and NCAA rules: The "Johnny Football" scenario.
- On trademark infringement.
- The importance of conducting trademark searches.
- Surprisingly, the rapper "Pope Emeritus" has virtually no chance in a trademark infringement suit against Benedict XVI.
- The "Redskins" mark should not be entitled to federal trademark protection.
- More on "Redskins" trademark cancellation proceeding.
- Do you need copyright, patent or trademark protection?
- Is your company's trade name federally registered by someone else?
- A good IP Awareness Assessment for businesses and entrepreneurs.
- Trademark FAQs (from USPTO).
- Trademarks vs. Antitrust.
- A trademark dispute in Cornhusker country.

The USPTO also has a good link for trademark basics, which can be found here.

An antitrust lawsuit against Minor League Baseball.

This is an odd case brought under antitrust law. The plaintiff is a former umpire who was fired for racist and offensive activities. The case just survived a motion to dismiss, in which Minor League Baseball argued that the antitrust exemption applied to the minor leagues. The court said that the exemption did not apply, and that the case could proceed to the discovery phase. In other posts, I have discussed Major League Baseball's antitrust exemption (Why does Major League Baseball have an antitrust exemption?, More on the antitrust exemption in baseball).

I find it hard to believe that the plaintiff will make it very far in this case. He contends that the minor leagues run an illegal monopoly, but even if the defendants have a monopoly over umpiring in baseball, there is no monopolizing conduct. To be an illegal monopoly, you need to have monopolizing conduct. So, basically, it is an interesting case, but one the plaintiff is extraordinarily unlikely to win.

More on "Redskins" trademark cancellation proceeding.

This is a pretty good link for additional information on the dispute regarding potential cancellation of the "Redskins" federal trademark registration. I have discussed it before, but this provides good supplemental information.

More on NCAA student-athlete likeness antitrust litigation.

This is a great overview from Sports Illustrated on the NCAA student-athlete likeness antitrust litigation. It provides a plain explanation of the ramifications of an NCAA or student-athlete win. I discussed the case briefly in a few recent posts (Publicity rights and NCAA student-athletes; and How class-certification works in connection with the NCAA student-athlete antitrust litigation). Some NCAA rules have violated antitrust law, but generally, the rules governing competition have been upheld. This case involves a little of both: competition and noncompetition.

If the student-athletes win, many schools would have to eliminate a number of sports programs in order to pay current and former football and basketball players. Some schools would have to drop down to Division III status where no athletic scholarships are offered. Only the behemoths of college athletics would survive with reasonable certainty.

If the NCAA wins, nothing would really change. I find this result unlikely. There is no reasonable justification for retaining former football and basketball players' likenesses after they graduate. Hence, I think this NCAA policy will fall. As a result, former football and basketball players would be able to monetize their college likeness after they graduate, as long as it does not run infringe the schools' intellectual property. So for instance, this would mean that Mike Rozier, the 1983 Heisman Trophy winning running back for the University of Nebraska, would be able to make money off his likeness being used in EA Sports' NCAA Football series of video games.

I doubt student-athletes will get the right to negotiate licensing deals for themselves on an individual basis while in college, because history shows NCAA rules are not so unreasonable that a court will strike them down in their entirety. The amateur model is reasonable, but given the amount of money involved in college athletics today, a revision to the rules is needed. A reasonable revision is that the student-athletes get a per capita portion of licensing revenue placed in trust, that is accessible upon graduation. That way, the amateur model remains, but student-athletes do get compensated after their eligibility expires. (If this comes to fruition, the next lawsuit would be one involving a former student-athlete who did not graduate but seeks payment from trust because the amount has legally "vested". He would probably be entitled to that amount without graduating, but that is an issue for another day.)

Although antitrust violations are fairly common, you must have "standing" to bring suit.

In antitrust suits, one of the most commonly overlooked requirements is "standing," which refers to the validity of the plaintiff's grounds for bringing the lawsuit. In other words, the plaintiff must have suffered an antitrust injury, or suffered damages due to a defendant's anticompetitive conduct. The damages must be of the nature that the antitrust laws were designed to prevent. There must also be a causal link between the damages and the anticompetitive conduct.

It is relatively frequent in everyday business to suffer detriment in connection with other companies' anticompetitive conduct. But the anticompetitive conduct is not always the direct cause of the damages. The detriment to the plaintiff is not always of the nature that the antitrust laws were designed to prevent. So, if you lack the causal link, you cannot bring an antitrust suit even if you are damaged. There may be other grounds on which you can bring suit, but you would not be able to do so on an antitrust theory.

A trademark dispute in Cornhusker country.

This is not an unusual situation with businesses in college towns, especially when a college mascot is named after the official state nickname (e.g., "The Hawkeye State"). The article describes a dispute between the University of Nebraska athletic department and a local Lincoln business owner. The business owner used the word "Husker" in his bar name, and the University does not want to be associated with it. As you would expect, the University has trademarks on the terms associated with the school's athletic programs. When it does attach its name to a local business, it charges a fee to do so.

The article is another example of the headaches that result from choosing a business name that is a federally registered trademark of another company. When you go to college towns, you will often see "Husker," "Cyclone," "Hawkeye," or another nickname on a business unrelated with the local school. The nickname you see depends on the town you are visiting. Business owners that choose such names should be careful, because the school can make them change it if they want. The school does not always do so, because they do not want to upset the same people who support the sports programs. But they can.

More on the antitrust exemption in baseball.

Here is a good piece on why Major League Baseball is largely exempt from antitrust law. The article is written by a law professor from UCLA. It contains much of the same information from my post, but written by a different author. On opening day, I figured it was a good time to rehash the topic.