Practice Developments

Name, Image, Likeness in College Sports

Posted on by Gavin Law Offices

Last month marked a long-awaited policy change for many college athletes.  Under new rules issued by the National Collegiate Athletic Association (NCAA), student-athletes may now financially benefit from their name, image, and likeness (NIL). Additionally, new legislation became effective in several U.S. states on July 1, 2021. The shift follows years of legal proceedings and public pressure to grant student-athletes access to a larger portion of the billions of dollars generated each year by college sports.  While many students and entrepreneurs alike are celebrating the lucrative financial opportunities sure to follow, some still question the best way to navigate and protect all parties involved.

NIL Basics & NCAA Policy Change

Name, image, and likeness, (sometimes referred to as “NIL” for short), are all tied to the overarching legal concept of “right of publicity.”  Essentially, this right refers to an individual’s ability to capitalize on, and be compensated through third-party endorsements, for their NIL.  NCAA athletes are now able to make money from a variety of business ventures that were previously prohibited.  For example, the new rules allow athletes to profit from endorsement and advertising deals, as well as from their social media accounts, making public appearances or speaking engagements, teaching sports lessons, signing autographs, performing music, or starting their own businesses.

Policymakers, faculty, students, and businesses are working through the evolving landscape of NIL opportunities under the new NCAA rules. While the NCAA policy stipulates that students may participate in NIL opportunities consistent with the state law where their school is located, only certain states, including Florida, Georgia, and Alabama, have enacted laws regulating NIL.  Specifically, the new NCAA rule does not override relevant state NIL laws, colleges’ and universities’ specific NIL rules, or conferences’ NIL policies.

College athletes should therefore review NIL rules in the state where their school is located. That way they can work with their athletic departments to understand any school and/or conference-specific rules and restrictions.  Students competing for colleges/universities in states without an NIL law may initially have more freedom until additional guidance or laws are enacted. Further, smaller schools may not have the same ability as larger university to properly advise students on NIL opportunities and risks.

What now?

While students will have new opportunities to capitalize on their NIL, it is important for both students and the businesses working with them to understand any laws or policies that may impact their transactions. Many state laws and school/conference policies prohibit athletes from endorsing alcohol and tobacco products.  Several state laws and school/conference policies also prohibit athletes from using their school’s trademarks or other copyright material in endorsements, or do not allow athletes to sign deals that conflict with their school’s sponsorship agreements. For example, a football player on a team sponsored by Adidas may not be allowed to wear another brand of shoes, such as Nike or the student’s own brand, during games.

Numerous college athletes have already taken advantage of the new rules by signing major endorsement deals with national brands such as Smoothie King and Boost Mobile.  Students at local universities and colleges in Richmond are eager to take advantage of these opportunities as well. Along with that there is certainly room for smaller businesses to become involved with college athletes.[1]

For students considering entering into a new contract to profit from their NIL, staying well-informed is a must.

State laws and NCAA rules allow college athletes to hire professional help in the form of lawyers, agents, and tax professionals.  It is important that businesses consult with legal professionals when entering deals with students as well.  Attorneys can help students protect their own NIL and intellectual property, such as trademarks and copyrights they are using to make a profit.  Legal professionals can help both students and businesses understand the complex laws and rules that are in place regarding student-athletes’ NIL.  Importantly, understanding the laws and policies can help students and businesses avoid infringing others’, including colleges and universities, intellectual property rights.

We are continually monitoring and keeping up to date with changes in intellectual property and business legislation. If you have any questions about NIL protections and how it may affect you, contact us today. – Courtney Reigel, Esq. & Lily Taggart

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

[1] VCU, UR enter ‘evolving area’ of name, image, likeness benefits for athletes | College Sports | richmond.com

Domain Names Disputes and Delays at WIPO

Posted on by Gavin Law Offices

Last month, attorney Courtney Reigel attended a webinar addressing ongoing delays at the World Intellectual Property Organization (WIPO).  Specifically, the webinar discussed the increase in the overall number of Uniform Domain-Name Dispute-Resolution Policy (UDRP) complaints WIPO has received since the beginning of the pandemic.

Domain name registrars such as GoDaddy are required to follow the UDRP. The UDRP establishes an expedited administrative process for resolving disputes involving the registration of internet domain names.  While other trademark-related legal matters must often be resolved through arbitration or litigation in federal court (which can be costly and time consuming), holders of trademark rights may file UDRP complaints with WIPO or another approved dispute resolution service provider to resolve issues involving abusive registrations of domain names (e.g., “cybersquatting”).  UDRP complaints generally offer an affordable, efficient, and straightforward option for us to resolve domain disputes for clients.

While UDRP complaints remain a useful tool for addressing domain name matters such as cybersquatting and “typo-squatting,” WIPO is currently experiencing delays in processing times for reviewing such complaints and issuing decisions.

Generally, the cause for the delay is the increase in overall number of UDRP complaints being filed with WIPO.  2020 was a record-breaking year for the number of domain name disputes filed with the organization.  However, this year is already on track to surpass 2020 in number of domain name disputes filed.  The increase in complaints is due to several factors, including the fact that there has generally been more internet activity as people shopped and worked from home during the pandemic. Additionally, the pandemic created new opportunities for cybersquatters to register and use domain names that contain a trademark plus the terms “coronavirus,” “covid,” or “vaccine,” for example.  The ICANN WHOIS service used to investigate registrant information for potentially infringing domain names no longer offers the same information it used to.  Due to privacy laws such as Europe’s General Data Protection Regulation, as well as the increase in number of privacy and proxy services registrants can use, registrant information (an individual or business’s name, address, and contact information) is no longer readily available.  In some instances, the only way for trademark holders to determine who is responsible for registering a domain that appears to infringe their intellectual property rights is to actually file a UDRP complaint and wait for the domain’s registrar to provide such information.  Further, the lack of registrant information makes it difficult to combine complaints involving several domain names that have the same registrant together into a single complaint (previously a common practice), which is also driving up the number of overall complaints.

Attorneys can help trademark holders monitor for potentially infringing domain names and enforce their rights, which often includes preparing and filing a UDRP complaint.  In light of the increase of bad actors online, such monitoring can be critical for preventing trademark dilution and avoiding the harm that can be caused by infringing domain names.  We can also draft complaints that clearly articulate trademark holders’ rights and address key issues to assist WIPO with reviewing complaints and issuing decisions as quickly as possible. The pandemic and changing laws compel a more strategic approach for handling domain name disputes, and we continue to monitor developments and are readily available to help clients with these matters.

– Rina Van Orden, Esq. & Courtney Reigel, Esq.

Earth Day 2021: Protect the Earth, Protect Your Work

Posted on by Gavin Law Offices

The first Earth Day took place in 1970, with organized groups in Los Angeles, Chicago, and many other American cities. Founded by Wisconsin Senator Gaylord Nelson, this now global event helped launch the modern environmental activism movement. Over the past 51 years the focus has grown from generating environmental awareness to spurring action for our natural resources. An early proponent of environmental care, Nelson paved the way for the widespread environmental protection measures that we see today.

Branding Sustainably

On almost any store shelf, there are trademarked goods related to Earth Day causes. There are several brands that dedicate their mission to being environmentally conscious. Patagonia and Seventh Generation are great examples of these types of brands. Interestingly, there are also a variety of protected labels, certifications, and other groups that promote sustainability.

Business and Planet

For instance, the movement “1% For the Planet” is a protected mark. The entity behind the mark works to connect businesses and environmental nonprofits to bring awareness and funding to protect natural resources. The name originates from businesses’ commitment to give 1% of gross sales each year to support the partner nonprofits. Many of these businesses are then able to use the 1% For the Planet mark to help strengthen their identity as an environmentally caring brand. The model is a win-win for business and the planet! Another example is Sustainable Forestry Initiative. The organization certifies sustainable foresting practices, which include biodiversity programs, water use measures, and forest health. Products such as paper bags and lumber use the protected mark.

Reforestation

Lastly, a popular nonprofit engaging with several businesses around the world is One Tree Planted. With a focus on global reforestation, the group makes partnership opportunities easy with different models centered on planting trees. Businesses can adopt the “One for One” where a chosen action, such as product sold, represents a tree. Individuals, teachers, and students, can also participate in tree planting opportunities on a smaller level. One Tree Planted is an internationally recognized organization with a large list of dedicated partners. Reforestation efforts significantly protect air, water, and climate, as well as improve social and health related concerns. One Tree Planted’s trademarked text and design represents their dedication to reforestation. Moreover, the mark’s placement on partnered organizations signifies a concrete promise to dedicate time and resources to planting trees.

“Greenwashing”: How does it affect me?

The increase of “green” and environmentally conscious protected intellectual property has gone hand-in-hand with the rise of the practice known as greenwashing. This is often seen when brands make misleading or false claims that their product or service is eco-friendly. Greenwashing is not only questionable from an environmental protection perspective, but it has grown into a major consumer protection concern. The U.S. Trademark Office has increasingly refused to grant registration to “green” trademarks. Marks like these originally faced hurdles to registration based on descriptiveness grounds but more recently are facing refusal on the basis of deceptiveness.  These objections can be especially difficult to overcome when applicants do not fully think these issues through in the initial filing strategy for a trademark application.

When it comes to deceptiveness considerations, brands can refer to the FTC’s Green Guides. Titled “Guides For The Use Of Environmental Marketing Claims” in 1992, the updated versions provide guidelines on how to market environmental claims and how to “avoid consumer deception” [Federal Trade Commission, 75 Fed. Reg. 63,552 (Oct. 15, 2010) (codified at 16 C.F.R. pt. 260)]. Over the past several years, the issues of greenwashing and ethical environmental marketing claims have grown into a substantial topic within the intellectual property community. Brand owners must always be aware of any possible sustainable implications in their mark and communicate to consumers properly. More importantly, those seeking environmental claims should be prepared to provide substantiation of any environmental claims that their marks and/or branding imply.

2020 marked an impressive fifty years of Earth Day. Each year it becomes even more imperative to include sustainability in our lives. Whether through economic partnerships or individual lifestyles, we hope to continue protecting and enjoying our great earth.

– Rina Van Orden, Esq. & Lily Taggart

2021 JOLT Symposium: Emerging Technology in Law

Posted on by Gavin Law Offices

Rina Van Orden recently attended the University of Richmond’s Journal of Law & Technology Spring Symposium. The event focused on “Emerging Technology in Law” and included topics such as artificial intelligence, blockchain, and bridging the access gap.

One panel covered “The Future of Law Post-Pandemic” presented by Sharon Nelson and John Simek. Nelson and Simek covered the many ways that the past year has changed the ways we work. Legal considerations for modifying operations represent their own opportunities for creative solutions. Web-based solutions like electronic signature and document services have helped maintain integral professional processes. Similarly, telecommunicating services provide safe ways to consult with coworkers and clients.

The event concluded with an engaging panel focused on Women in Technology Law. A highlight of the event, this topic was particularly relevant to our firm. The panel included attorneys, educators, and other professionals who were able to give perspective on what it’s like to be a woman in this field and ways to increase future technology law opportunities.

We want to thank the Journal of Law & Technology for a wonderful program. As the legal industry grows and adapts, we continue to stay informed of the ways to better serve you.

How We Read Across America

Posted on by Gavin Law Offices

Today, March 2nd, marks National Read Across America Day.

This day celebrates and stands as a reminder of how important it is for children and teens to read. In honor of this celebration of reading, our team brainstormed some of our favorites and recommendations.

  1. Favorite book as a child
    • Hitchhiker’s Guide to the Galaxy by Douglas Adams
    • The Nancy Drew series, published by Edward Stratemeyer
    • The Harry Potter series by J.K. Rowling
    • Works by Shel Silverstein
    • The Wizard of Oz series by L. Frank Baum
    • The Junie B. Jones series by Barbara Park
    • The Eragon series by Christopher Paolini
  1. A book every child should read:
    • The Giver by Lois Lowry
    • Where the Wild Things Are by Maurice Sendak
    • Where the Sidewalk Ends by Shel Silverstein
    • Charlotte’s Web by E.B. White
  1. A book every adult should read:
    • The Great Gatsby
    • The Things They Carried by Tim O’Brien
    • A People’s History of the United States by Howard Zinn
    • Braiding Sweetgrass by Robin Wall Kimmerer
  1. Favorite Non-fiction Book
    • Devil in the White City by Erik Larson
    • Braiding Sweetgrass by Robin Wall Kimmerer
    • Happy City by Charles Montgomery
    • The Worst Hard Time by Timothy Egan
    • The Bible
  1. Favorite Legal Book
    • To Kill a Mockingbird by Harper Lee
    • Bourbon Justice: How Whiskey Law Shaped America by Brian F. Haara
    • The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin
    • Gideon’s Trumpet by Anthony Lewis
    • Evicted: Poverty and Profit in the American City by Matthew Desmond
    • Just Mercy by Brian Stevenson

 

Lastly, as part of Read Across America’s mission to empower young readers, Rina wanted to recommend The Read-Aloud Handbook by Jim Trelease. She shared that it’s an amazing book on the importance of reading to children when they are young. Kat similarly had a few other titles that didn’t quite fit the questions that she wanted to share. As an avid fan of financial literacy books, the two that she would suggest for everyone are I Will Teach You to be Rich by Ramit Sethi and Money Master the Game by Tony Robbins.

We hope you’re able to find a good read to celebrate National Reading Month in March and Read Across America. What are some of your recommendations or favorite reads?

 

– Lily Taggart