Student-athlete likeness litigation appears headed to trial.

Last week, the presiding judge in the NCAA student-athlete likeness antitrust litigation denied competing motions for summary judgment. The judge has not yet issued a written ruling on either motion, but indicated that the issues cannot be resolved without a trial. Keep in mind, there were two classes seeking certification, and only one was certified: current student-athletes. Former student-athletes were not certified as a class.

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."

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.

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.

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.

On trademark dilution: the Barbie example.

Trademark infringement results when a defendant uses a confusingly similar mark to a plaintiff's mark. Trademark dilution results when a defendant uses a mark in a way that lessens the distinctiveness of a famous trademark, regardless of a likelihood of confusion. This is a clear example of trademark dilution: an iPhone game that allows users to give plastic surgery to an overweight Barbie.

There are two types of trademark dilution: blurring and tarnishment. Dilution by blurring occurs when a defendant unauthorizedly uses a mark on dissimilar products and services than the famous mark, slowly reducing its distinctiveness. A hypothetical example of this would be a company providing mufflers under the brand name of "Nike." Obviously, consumers would not think that Nike mufflers were associated with the athletic shoes and apparel company, but allowing Nike mufflers to operate would lessen the distinctiveness of the Nike mark over time. Dilution by tarnishment occurs when a defendant uses a mark in unsavory contexts, for instance in an iPhone game where users give Barbie plastic surgery.

When good juries go bad.

Juries usually get it right, but not always. As long as a jury verdict is within the range of conclusions a reasonable jury could make, a judge will not overturn the decision. If a jury verdict is not one a reasonable jury would make, the judge can override the jury. That is what happened in the Madden NFL video game lawsuit discussed last year. The jury awarded the video game designer millions of dollars in damages, but the judge overturned the verdict because there was not sufficient evidence for the verdict.

On generic and arbitrary trademarks: the Candy Crush example.

The developer of the Candy Crush game for mobile devices recently sought a federal trademark registration for "Candy." The article illustrates many common issues when registering a trademark over an existing word that would be generic when used on or in connection with the good or service it literally describes. For instance, "Candy," when used in games for mobile devices, is not unlike "Apple" when used with computers and like technology. If "Candy," were used in connection with candy, it would be generic and incapable of trademark protection. If "Apple," were used in connection with apples, it would also be generic and incapable of trademark protection.

Basically, a generic mark is one you would see in a cartoon or sit-com when a character is using a good. When you see a television character drinking beer, the can often says "Beer." When you see the character drinking cola, the can says "Cola." When you see the character eating chips, the bag says "Chips."