Exam 3 Study Guide - Human Geography: America Europe | GEOG 1001, Study notes of Geography

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TEST 3/FINAL NOTES Chapter 14 – Intellectual Property  Trademarks, copyrights, patents  Property rights often transferred for a fee  License o Permission granted by owner to use intellectual property o Trademarks on clothing, right to broadcast event  2 types of endorsements o Celebrity and expert o Tiger Woods endorsement for coke and golf clubs, respectively  Marks o Purpose – identify properties  Can include shapes, colors, sounds and movements o Types  Trademark  Identify goods with the manufacturer  Nike’s shoes, Wilson footballs, Lexus cars, McD’s burgers  Service mark  Identifies service  McDonald’s or sports agency IMG  Trade dress  Includes trademark and the entire package of product or service  Golden arches, Coke’s bottle shape, French fry holder  Trade name  Identify business itself, shorter name  GM and NFL  Certification mark  Complying with standards  Good Housekeeping seal of approval  Collective mark  Identifies with group  Boy scout badge  Federal Trademark Act o AKA Lanham Act – most important trademark law o Prevents non-owners from exploiting goodwill or recognition of existing mark o Provides registration for trade and service marks o Federal cause of action of infringement for federally registered marks o Renewable forever as long as interstate commerce is still being used o Protects trade names which can’t be registered, under this act o Protects even if mark isn’t registered 1  State trademark laws o Provide exclusive rights within state o Even without registration, users can seek relief under different remedies o Common law remedies  Amateur Sports Act o Recognized US Olympic Committee as governing body of Olympic sports in this country o Gave USOC right to use Olympic logo  USOC v. American Media  Court ruled that magazine Olympics USA wasn’t a violation  Trademark criteria o Distinctive – fanciful, arbitrary, suggestive, descriptive and generic  Arbitrary and fanciful ex. Nike and Apple  Sports channel – too generic of a name to trademark  Boston Marathon and MNF – generic but distinctive, able to obtain trademark o Ownership  Ownership is achieved pursuant to use  Plaintiff must establish that ownership provides priority protection o Likelihood of confusion  Plaintiff has to prove defendant’s use of mark is causing confusion o Factors considered in likelihood of confusion:  Strength of plaintiff’s mark  Similarity between marks  Similarity of products or services  Actual confusion among consumers  Sophistication of buyers o Most common infringement includes “passing off”, “knockoffs”  Boston Athletic v. Sullivan of Smack Apparel o Service mark infringement o Infringed BA’s service mark and logo o Trademark is BAA’s most valuable asset, enforceable o A person would infer a relationship between BAA and shirts o Argued that shirts from 1978 constitute prior usage o Defendant failed to meet burden of proof in showing that term was generic o Did likelihood of confusion exist? Yes. o Was there a trademark infringement?  Trial court says no, appellate court says yes. 11/10/11  Bd. Of Supervisors v. Smack Apparel o Did universities’ color schemes, logos and designs have secondary meaning? 2 o Just Do It isn’t a registered mark, but is entitled to trademark protection o Likelihood of confusion exists o Difference couldn’t be told from afar o Argued first amendment, selling as parody o Parody isn’t defense for trademark infringement o Nike wins on infringement claims o Referenced other cases  Mutant of Omaha  Hard Rain Café  Both cases showed likelihood of confusion  Jordache v. Hogg Wyld  Found that logos were sufficiently different o Mike Stanard appealed case next year  Used parody defense, he won  Disparagement o Lanham Act prohibits registration of marks that are scandalous, disparaging or contemptuous o Bromber v. Carmel Self Service  Sexually offensive, chicken restaurant’s slogan  Native Americans o Harjo v. Pro-Football o Filed suit to stop use of Redskins name o Washington team kept using but didn’t have exclusive rights o Laches – equitable defense that applies when there is a lack of diligence on the party bringing the action and prejudice to party asserting the defense. 11/15 SPEAKER NOTES  How to get an LSU license o Obtain a CLC o CLC is located in Atlanta  In 2002, CLC launched a hologram labeling system that is consistent with what the pro. League uses  Licensor-trademark owner-LSU  Licensee-manufacturer-Nike  Retailer-bookstore-buys from licenses  Consumers-buy from retailers  LSU’s standard royalty rate is 10% (1.00/unit)  Profits of 1 mil. In 02-03, just under 3 mil. In 03-04. In 10-11, under 5.5 mil  Protect, promote, profit 5  1.6 mil video games sold in 10-11, $148, $105 in total royalties to LSU  In re NCAA Student-Athlete Name and Likeness Licensing Litigation o Sam Keller v. EA Sports, NCAA CLC – class action antitrust suit claiming video games make illegal use of player names and likenesses o Ed O’Bannon v. NCAA, CLC – class action antitrust suit seeking damages for use of former players’ images and likenesses in video content, photographs and other memorabilia  Growth categories o Children’s/youth apparel – up an avg of 30% since 02-03 o Youth leagues can wear officially licensed LSU merch for their team o Women’s apparel- up 49% per yr since 02-03  Co-branding o Strategic co-branding reinforces brand quantity o Nike and Pink o VS Pink 2008 Magalog shot on LSU campus and around BR o Magalog featured LSU products and facts, distributed to over 2 mil. People o Fall 2009 – two co-branded programs launched with Disney o LSU was one of nine schools in the program for Walmart  New/revitalized categories o College vault o Class ring program o Housewares/personal accessories o Home and recreation products  License plates o $26 annual fee, $25 goes to scholarship fund o Generated over 2 mil since 1992 program inception o Non-generating revenue in TX and Miss o Second TX plate released in TX in Sept 2010, generates $5 per plate/yr for LSU  Exclusivity o Balfour (rings) o Upper deck (trading cards) o Nike (coaches’ products, jerseys, etc.) o EA Sports (NCAA Football)  LSU in the marketplace o LSU logos are appearing more frequently on products in the marketplace o LSU retailers have made a commitment to carrying more products that represent the LSU brand  LSU.com o 50+ retailers known as Tiger Tailers o Info on site 6 o Resource for fans and licensees to locate prominent retailers o Newsletters posted quarterly for ideas on new products o Open lines of communication o Licensee list of approved companies o Enforcement form to report potentially unlicensed products  Enforcement o Dozens of cease and desist letters annually o Game day enforcements o Lawsuits o Shirts may not be infringement issue o No solicitation policy on campus  Smack Apparel o Plaintiffs allege unfair competition under Lanham Act o Summary judgment in our favor o Didn’t stop selling shirts o Smack held in contempt o 11/25/08- U.S. court of appeals for fifth circuit affirmed La federal court’s decision in favor of plaintiffs o 6/4/09- U.S. supreme court denied Smack’s petition for Certiorari  Hot market issues o Cannot use generic tags o History of logos and marks o Hired NY company to make symmetric logos, interchangeable 11/17  Right of Publicity – intellectual rights o Right to promote from a name  Misappropriation o Unauthorized use of a person’s name or likeness o Invasion of privacy o Ex. Elroy Hirsch and “Crazy Legs” o Shaving gel, company had to discontinue use of name o Palmer v. Schonhorn  Game had to discontinue use of golfer’s names o Motschenbacher v. RJ Reynolds Tobacco  Court expanded protection beyond name or likeness  His trademark was his car  Court prevented use of name on car promoting cigarettes o Ali v. Playgirl  Likeness and name issue, “The Greatest” under pic 7  Copyright laws do not extend to sports events  NBA sues Motorola Sports Track for sports updates o Trial court ruled in favor of Motorola o Appellate court reversed  Corporate sponsorships  Ambush Marketing - Non-sponsoring competitors o 1996 Olympics in Atlanta  Pulled all merchandise o Jerry Jones sponsorships  Created his own sponsorships, NFL filed suit, Jones alleged antitrust violation  Jones was able to continue his individual marketing , required payments to NFL though  MLB and Yankees o Made deal with Adidas o MLB wanted it stopped, Yankees claimed violation o Case was settled, contract was canceled  Buffalo Bills have first naming right o Protecting the facility and the sponsor from the negative exposure  Exposure, exclusivity, good will, identity, cross-promotional opportunities unlimited, amenities for clients or employees, tax benefits  Potential problems o Broadcasts refusing to use name o Ex. Lowes and Pepsi 11/22  What is a tort? An unlawful, non-contractual injury to a person or his property.  What types of torts are there? o Negligence (most common) o Intentional act o Can result in criminal action, could be private (civil)  What are the elements of a tort? o A duty is owed, defendant breached duty, plaintiff is injured, breach of duty is legal cause of plaintiff’s injury o Ex. pertaining to sports law, physical injury o Was a duty owed by defendant to plaintiff?  Are there any defenses? o Consent and assumption of risk o Ex. know you will be hit, and therefore injured  Dilger v. Moyles o Hit while playing golf 10 o Said he didn’t see her o Risk of being hurt is inherent o Lawsuit would deter golfers from playing o Etiquette does not equal duty o If tort exists, hit would have to be intentional  Mike Tyson o Bit off Holyfield’s ear o If tort suit would have been filed, Holyfield wins o Not an inherent risk of the games  Crawn v. Campo o Must prove intentional act  Nabozny v. Barnhill o Goalie kicked while off-field o Able to be awarded damages because of specific rule  Bourque v. Duplechin o Ran into Bourque, broke jaw o Ball had already been thrown o Breached duty to play by rules o Plaintiff didn’t anticipate injury  Ginsberg v. Hontas o Slid into base, injured player’s leg o No liability for defendant, player assumed risk  Staten v. Superior Court o Skaters collide o Assume risk of being hit  Lestina v. West Bend Mutual Insurance o Instructor was hit by ball in tennis o Defendant was supposed to hit ball softly, didn’t o Plaintiff wins  Hackbart v. Cincinnati Bengals o Hit on back of head o Trial court says inherent risk o Appellate court says reckless  McKichan v. St. Louis Hockey Club o Player hit off-field o Sued player and club o Counter-sued o Dropped suits against each other, club is sole defendant o Club is liable for players’ actions o Appellate says player assumed risk 11  Liability of coaches, schools and teams o Theories of liability  Failure to properly train, warn or instruct  Gathers – Loyola player o Dropped dead after medicine dosage is reduced o Parents and school v. doctor, settlement reached of $2.6 mil  Buoniconti and Citadel o Had neck strap, actually more dangerous o Buoniconti settles for $800,000 o Defense proved Buoniconti had violated NCAA rule  Bester v. W. Windsor Plainsboro o Allegedly abused by coach, told to lose 10 pounds in 2 weeks o Led to long-term eating disorder o Plaintiff awarded $1.5 mil, appellate court reversed decision in favor of defendant  Zalkin v. American Learning System o Hs football player injured, appeallate court says assumed risk, but not negligent supervision o Said he had to see doctor, didn’t, coach told him to play anyway  Woodson v. Irvington Bd. Of Ed. o Track star recruited for speed, made tackle after one practice, injured o Coaches only concerned with winning o Plaintiff awarded substantial damages  Mogabgab v. Orleans Parish School Board o Exhibited signs of a heat stroke, coach waited before receiving aid o Student died o Coach’s conduct is found to be negligent  Kruger v. San Francisco 49ers o Failure to inform player that he risked a permanent knee injury by continuing to play was fraudulent concealment o Kruger wins $2.36 mil, settled for sum of $1 mil  Randy Shannon o Coach hit on head while visiting other school at game o Claimed school failed to protect visiting team from overzealous fans o Awarded $50,000  Nova Univ. v. Katz o Cheerleader fell from stunt o Court ruled in favor of Katz  Coyle v. Parish of Jefferson o Player hit in face by baseball o Court ruled it as inherent risk 12  Columbo – deaf  Spitaleri – one eye  Both prohibited from playing football  Kampmeier - One eyed female athlete wanted to play non-contact sport, won  US Constitution  Neeld v. Amer. Hockey League  Challenged league’s policy banning one-eyed players  Court says it’s a private matter, no constitutional scrutiny  College players would have a claim because of state action  Legal issues of an athlete’s right to participate in a sport o Individuals with Disabilities Education Act (IDEA)  Requires support services and accommodations for impaired students with special needs o Rehabilitation Act (RA)  The RA prohibits programs which receive federal funds from discriminating against a person with an impairment who is "otherwise qualified." The RA applies to persons who 1) have a physical or mental impairment which substantially limits one or more "major life activities," or 2) have a record of such impairment, or 3) are perceived as having such an impairment. o Americans with Disabilities Act (ADA)  Expanded provisions of RA to include private employers and public facilities  3 major titles under ADA:  Private Employment Situations  State and Local Governments  Privately Operated Places of Public Accommodation  Physical Impairments o Nicholas Knapp  Heart problems, collapsed  2 doctors with school, 2 doctors on Knapp’s side  Trial court rules in favor of Knapps  Appellate court reverses decision, school does not have to let him play o State ex rel. Lambert v. West Virginia State Board of Ed.  Deaf athlete, provided translator for academics, not sports  Courts relied on IDEA, it says equal opportunity for everyone o Gallaudet Univ.  Deaf university, football players, credited with creating the huddle o Swimmers  Deaf swimmers watch pool surface, blind have a tapper at end of pool,  Mental impairments and age limits o Chad Ganden 15  Had learning disability, didn’t qualify for college sports because he didn’t take required classes  Granted partial waiver, classified as a “partial qualifier”  Couldn’t participate in sport but could practice for first year  Filed suit, court upheld NCAA’s decision o Sandison v. Michigan HS Athletic Assoc.  2 disabled learning students ran track  Couldn’t run their senior year because of age requirements  Trial court ruled in favor of students, decision is reversed in appellate court  To be successful under RA law, must prove 4 things:  1. The plaintiff is "handicapped" under the law.  2. The plaintiff is "otherwise qualified."  3. The plaintiff is being excluded solely due to the handicap.  4. The program receives federal funds.  Could only prove 1 and 4  McPherson v. Michigan HSAA o Diagnosed very early with learning disability o Ineligible to play sports after 8 semesters in hs o Limits level of athletic experience and skill o Diagnosed with ADHD and seizure disorder o Requested waiver, not granted o Said it would alter nature of game if many students had waivers  Washington v. Indiana HSAA o Diagnosed later in life with learning disability o Wanted waiver to play o Court grants injunction, allows him to play o Basketball improved confidence  LHSAA rule o Ban on “hold backs” o Schools are holding back students to enhance their athletic careers o Sanctions against coaches and principals who violate ban  Bingham v. Oregon School Activities Assoc. o Student diagnosed with ADD, had to repeat 10th grade but met age requirement o Association denied request for waiver o Court ruled in favor of Bingham o Significant because player didn’t offer any competitive advantage to the team  Jones v. West Virginia o Home-schooled children wanted to play in public school’s events o Court says no, it’s a voluntary choice to home school your kids  Brentwood v. Tennessee Athletic Assoc. 16 o Statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools may be regarded as engaging in state action when it enforces a rule against a member school. o Brentwood violated rule “undue influence” in recruiting athletes, put on athletic probation for 4 years, couldn’t compete o Brentwood sued association saying it was a state action and violation of 1st and 4th amendments o District court ruled in favor of Brentwood o Appellate court reversed decision saying there is no single test to identify state actions  Tarkanian o Supreme court found that NCAA was not a state actor  Indiana HSAA v. Durham o After divorce, student left private school for public school, wanted to play sports at varsity level, couldn’t o Plaintiff asked to overturn IHSAA decision, court granted injunction and IHSAA appealed o Appellate court confirmed decision  Johansen v. LHSAA o Student moved to private school, school allowed her to play sports o LHSAA got complaint, told school to not let her play o Had to forfeit games she participated in o School appealed commissioner’s hearing o Hearing was ultimately upheld o Plaintiffs later filed a petition seeking injunctive relief and damages o Court squarely held that "[a] student's interest in participating in a single year of interscholastic athletics amounts to a mere expectation rather than a constitutionally protected claim of entitlement." o Plaintiffs alleged she had an opportunity to play in college and this ruined that o Court says speculative and uncertain  Menard v. LHSAA o Transferred schools his senior year o Ruled ineligible to play because there was no bona fide change in residence under LSHAA’s rules o The trial court sustained the objection of lack of subject matter jurisdiction and dismissed plaintiffs' action. o Plaintiff had no procedural or substantive due process right to participate in football at the school  Professional sports o 14 year old tennis star wanted to compete, could only do so in 4 event o Parents threatened to sue WTA 17