Covering Your Ads : Advertising & Marketing Lawyer & Attorney : Sheppard Mullin Law Firm : Entertainment, Sports, Publicity

By Ryan Hilbert

Following on the heels of New York Jets quarterback Tim Tebow’s attempt to register the trademark "Tebowing," Baltimore Ravens linebacker Terrell Suggs’ attempt to register the trademark "Ball So Hard University," and New York Knicks phenom Jeremy Lin’s attempt to register the trademark "Linsanity," it appears that another high-profile athlete, former University of Kentucky basketball standout and consensus No. 1 NBA draft pick Anthony Davis, is now getting into the trademark business.

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By Ryan Hilbert

Baltimore Ravens linebacker Terrell Suggs may be fast on the field. But it’s too bad he wasn't faster to the U.S. Patent and Trademark Office.

During the telecast of a game between Suggs’ Ravens and the Pittsburgh Steelers on Nov. 6, 2011, Suggs referred to his alma mater, Arizona State University, as “Ball So Hard University.” This phrase immediately caught on, and three days later Suggs appeared at a press conference wearing a T-shirt with “Ball So Hard University” printed on the front. The only problem was that Suggs didn’t create or sell the shirt himself; he bought it from someone on the Internet.

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It’s that time of year again. College campuses around the country are buzzing, co-workers are whispering about office pools, and “bracketology” is the popular science of the day. The NCAA men’s basketball tournament season, aka “March Madness,” has begun. To tap into the vast media audiences generated by the NCAA Tournament (the “Tournament”), ambush marketers have started populating the market with basketball-themed promotional materials. There is little doubt that ambush marketers can legally draw on generic basketball symbols and complimentary imagery to tie into the excitement surrounding the Tournament without exposing themselves to a meaningful risk of liability to the NCAA as the Tournament operator. But what about using the phrase “March Madness”?
 

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The image of 36 women wearing skimpy orange dresses at a World Cup soccer match last June raised the ire of Fédération Internationale de Football Association ("FIFA"), which had two of the women arrested for organizing the ambush marketing stunt on behalf of Dutch beer brewer Bavaria. Meanwhile, Nike’s "Write the Future" soccer-themed commercial, which is a 3-minute magnum opus featuring players from various national teams that qualified for the World Cup 2010, was allowed to launch an epic reign on YouTube unfettered by any interference from FIFA. Commentators have already pointed out that the players involved in Nike’s "Write the Future" campaign had disappointing World Cups: Ronaldinho didn’t even make the Brazil squad, while Cristiano Ronaldo, Wayne Rooney, Franck Ribery, Didier Drogba and Fabio Cannavaro were all knocked out of the World Cup 2010 before the quarterfinals, each after enduring various misfortunes. But that did not stop the spot from generating major brand exposure for Nike and accumulating more than 21,200,000 hits and counting on YouTube. How can FIFA justify having women arrested for wearing orange dresses while doing nothing against Nike? Only FIFA can definitively answer this riddle, but FIFA itself publicly forecasted that it would take this approach months before the World Cup 2010 even began.

This article by Ben Mulcahy was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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The National Collegiate Athletic Association (“NCAA”) profits handsomely from the increasingly lucrative collegiate licensing and merchandising market— estimated to be worth $4 billion annually. Yet, current and former NCAA athletes do not share in these licensing fees. Two ways that the NCAA has accomplished this result are by requiring NCAA athletes to sign away their licensing rights, and by refraining from licensing players’ names to popular products such as video games. However, all of that may change as a result of related class action lawsuits filed by former Arizona State and Nebraska quarterback Sam Keller and former UCLA basketball star Ed O’Bannon.

The following article by Daniel Brown and Dante DiPasquale was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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The image of Michael Phelps “swimming” across a Midwestern wheat field toward Vancouver recently raised the ire of the United States Olympic Committee (“USOC”), which characterized the image as “crossing the line.” But is the USOC’s position legally warranted, or is the image nothing more than a lawful and effective ambush marketing campaign?

The following article by Ben Mulcahy was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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Successful athlete endorsements can enhance consumer recognition of a brand and increase the relative perceived value of the products being endorsed. But securing a high-profile endorsement often requires lengthy negotiation and certainly comes at a high cost of entry. For example, Nike reportedly paid Tiger Woods over twenty million dollars for his endorsement, and Peyton Manning reportedly raked in over thirteen million dollars from endorsement deals with Sprint, MasterCard, Gatorade and Reebok. With the current state of the global economy and an unprecedented contraction in (and internal and external scrutiny of) marketing and advertising budgets, major brands are becoming even more selective about the quantity and quality of the athletes they engage in endorsement deals. Fundamental supply and demand principles have, in turn, given major brands greater leverage in negotiating contracts that give the brand broader rights and greater protections in the event the endorsing athlete’s image suddenly takes a turn for the worse.

The following article by Ben Mulcahy and Gina Reif Ilardi was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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When Citigroup (“Citi”) announced its unprecedented $400 million dollar deal for naming rights to the new Mets Stadium in late 2006, sports marketing experts assumed that Citi was breaking new ground in naming rights deals for sports venues. Shortly after Citi announced its deal for “Citi Field,” British banking giant Barclays agreed to pay a reported $400 million dollars over twenty years for naming rights to the future home of the New Jersey Nets, and experts predicted that companies would offer even more for the naming rights to the new Cowboys and Giants stadiums.

In recent weeks, however, Citi has accepted $45 billion dollars in funding from the Troubled Asset Relief Program (“TARP”). As a result, Citi’s deal with the Mets has undergone intense scrutiny, with certain members of Congress proclaiming that Citi should be forced to back out of its deal with the Mets. Although there is some visceral appeal to that position, requiring Citi to back out of its deal would have far-reaching financial implications for the entire sports industry and would raise complex legal issues under the Contracts Clause and the Takings Clause of the United States Constitution.

The following article by Ben Mulcahy and Gina Reif Ilardi was originally published in Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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Although the WGA strike is reportedly near an end, the strike has naturally made it harder to find paid acting jobs in film and television, causing a greater number of Hollywood celebrities (and their agents and other reps) to pursue endorsement opportunities and the money that follows.  The money, however, doesn't just go to the celebrities and their reps.  It also goes to the trustees of the applicable guild's Pension and Health Plan.  The amounts being claimed by the trustees, and in some cases the threshold issue of whether the trustees are entitled to ANY amounts, are increasingly being challenged.  This blog entry briefly discusses the allocation issue and the jurisdiction issue.

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