Flashcards in IPR and Sports Marketing Issues in European Sports Deck (42)
Why is IPR important?
It enables the sports organisations to exploit not just the sporting event in ways of sponsorships, endorsement contracts, licensing agreements, merchandise sale etc.
What is ambush marketing?
A planned attempt by a third party to associate itself directly or indirectly with "the event" to gain the recognition and benefits associated with being a sponsor.
American Express - you need a passport - you don't need a VISA
When one attempts to cash in on the lucrative opportunity of exploiting names, logos or symbols associated with an athlete or a sports organisation in the hope that this goodwill and popularity would rub off on their own products.
How is trademark law regulated in the US
By the Federal Trademark Act - The Lanham Act
What is the purpose of a trademark?
To secure trademark owners in the goodwill they have built up and in protecting the public from imposition by the use of counterfeit and imitated marks and false descriptions.
Designating the source of origin.
How is a trademark defined in the Lanham Act?
As any word, name, symbol or device or any combination therefore adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.
What is a service mark?
A mark used in the sale or advertising of services to distinguish the services of one person and distinguish them from the services of others.
Sports team names and logos are regarded as service marks.
What is the difference between a trademark and a service mark?
A trademark identifies and distinguished the source and quality of a tangible product, a service mark identifies and distinguished the source and quality of an intangible service.
How long can a mark be registered?
For 20 years and thus possibility of renewal.
Does a trademark have to be used?
Yes, it must be protected against infringements - else it will become generic.
Are colours protected?
MBL v. Salvino case - yes, colours can have secondary meaning - likelihood of confusion.
Are nicknames protected?
The Colts case - The Court found that the likelihood of confusion for the market of professional football greatly outweighed the abandoned mark defence.
Is trademark law regulated within the EU?
Yes, EU in 1988 implemented a Directive on trademarks.
Only had in view to approximate the national trademark laws in the various member states.
What does Section 1 of the Danish Trademark Act state?
That persons and enterprises may obtain an exclusive right to trademarks.
What is a trademark in relation to Danish law?
A distinctive sign for goods or services being used or intended for use by commercial enterprise.
What is a fundamental legal requirement in order to render protect to a trademark within Danish law?
The distinctive character. May consist of any sign capable of distinguishing the goods or services of one enterprise from those of other enterprises.
What does a trademark often consist of?
Words, slogans, personal names, company names, letters and numerals, pictures and designs, shape etc.
How can a trademark right be established according to section 3 of the Act?
1. By registration of a trademark right
2. By commencement of use (the distinctive character can be reached through use - obtaining a secondary meaning)
Explain the Superliga case
Danish Football League had registered the trademark Superliga - Danske Spil had made the game Oddset Superliga Manager.
The Court held that the mark Superliga had sufficient distinction and had been used commercially, so that the league had obtained an exclusivity to the mark.
How is a trademark protected under section 4 of the Danish Trademark law?
The proprietor of the trademark right shall be entitled to prohibit all persons not having his consent from using in the course of any sign if i) the sign is identical with the trademark and the goods or services for which the sign is used are identical with the goods or services for which the mark is protected or ii) the sign is identical with or similar to the trademark, and the goods or services are identical with or similar to those covered by the trademark, if there is a likelihood of confusion.
Explain the Reed case
Landmark ruling regarding the use of marks and badges
In 1989 Arsenal FC registered the word marks ”Arsenal” and ”Arsenal Gunners” for a class of goods comprising articles of sports clothing etc.
Since 1970 Mr. Reed had sold official and unofficial football souvenirs and memorabilia marked with signs referring to Arsenal FC from several stalls outside Emirates Stadium. On his stall he had a large sign with a text stating that “The word or logo(s) on the goods offered for sale, are used solely to adorn the product and does not imply or indicate any affiliation or relationship with the manufacturers or distributors of any other product, only goods with official Arsenal merchandise tags are official Arsenal merchandise”
Mr. Reed clearly distinguished between official and unofficial products when dealing with customers for instance by labelling official products “official”.
ECJ - focus on the guarantee of quality.
Even though badge of support, loyalty and affiliation to Arsenal, not sure that Reed's use of the trademark would not jeopardise their function - namely to guarantee origin.
Explain the Barca case
A cafe in Manchester was names Barca - the question was whether that was allowed since FC Barcelona has registered Barca.
Even if the term Barca did recall Barcelona in some way - the public would not believe that Barcelona had set up a bar in Manchester.
How is copyright regulated in the US?
By the US Copyright Act of 1976.
What is the purpose of the copyright act?
To protect artists, authors and composers primarily from the unauthorised copying of their original works of authorship fixed in a tangible medium.
What does copyright depend on in EU?
To protect a literary or artistic work a requirement of original creation is set up.
Can normal sports performances be copyright protected?
No, only sports performances in which the aesthetic element plays a decisive role in the overall impression can enjoy protection, e.g. ice-skating.
The element of unpredictability is important.
Explain the Right of Publicity
The property right can be infringed by the unpermitted use of a person's name, likeness og persona in a commercial setting.
Protects public figures including sports celebrities from having the publicity value of their names and reputations unlawful appropriated by others.
For the first time acknowledged in the US, in the Chewing Gum case.
Explain the Cardtoons case
A case regarding baseball cards with the player's images found on the front and the biographical data on the back - the images were caricatures.
Court: no likelihood of confusion between Cardtoons and officially licensed baseball cards - the Court applied the fair use defence to the right of publicity.
Learning: The important thing is commercial use.
What is the landmark decision in Denmark on protecting of the image rights?
The Buster Larsen case.
Since then, Danish Courts have rendered protection against commercial misappropriation of a well-known person's name, picture og likeness.
What can be said regarding the protection of images rights in Denmark?
That no publicly well-known person's name or picture or likeness may be exploited commercially without his or her consent.