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Joshua Briones is Managing Member of the firm’s LA office. Josh is a highly experienced trial lawyer with a national practice focused on bet-the-company class actions. He has participated in the defense of dozens of complex class actions in state and federal courts across the country involving all stages of the litigation and appellate processes. He has represented scores of clients in consumer protection matters, including the Los Angeles Lakers, the Cleveland Cavaliers, eBay, Inc., Pay Pal, Inc. and H&R Block, Inc, among others, spanning numerous industries, including consumer finance, insurance, telecommunications, manufacturing, environmental and pharmaceuticals.

Notwithstanding the glitz and glamour of multi-millionaire race drivers and champagne, Formula One is all about data. Analytics are fundamental to understanding Formula One races. Teams are fueled by data, and around every corner you’ll find a car fitted with over 150 sensors monitoring car and driver behavior. These sensors track vital stats such as brake wear, tire life and driver biometrics. In one lap, they can transmit 2GB of data; over the course of a full race, 3TB of data.

NBA teams too are now using a form of technology, called “Player Tracking,” that evaluates the efficiency of a team by an analysis of player movement. According to the SportVu software website, teams in the NBA are now using six cameras installed in the catwalks of arenas to track the movements of every player on the court and the basketball 25 times per second. The data collected provides a plethora of innovative statistics based on speed, distance, player separation and ball possession. Examples include stats on how fast a player moves, how far he travels during a game, how many times he touches the ball, how many passes he makes, how many rebounding opportunities he has, and much more. The information is available to fans on NBA.com and NBA TV. Data analytics are also common in the MLB, NFL, MLS and other professional and collegiate sports, where statistics have become vital in analyzing games and players.

But gathering data in the volume and depth that is necessary to make accurate predictions comes with risks. What if the data falls into the wrong hands? How valuable would detailed statistics be? Of course, teams have traditionally monitored their opponents by sending scouts to games, or watching hours of video re-runs, while meticulously making notes on individuals’ performances; but access to the “fire hose” of data collected during training would provide a huge shortcut.

For example, in Formula One, a data or system loss, or even a malware infection, and the race is lost.  Formula One teams have data centers on the side of the track, processing every nanosecond of the race.  If any of that data fell into the wrong hands it could be disastrous, which is why Formula One teams take data security extremely seriously.

Interestingly, tools needed to make sure data can be collected safely and kept only in the hands of those who it’s intended for are already available. The problem is that outside of a few highly data-driven sports, such as Formula One, most clubs and teams just aren’t aware enough of the dangers to have implemented them. Like businesses gathering data, sports teams too should have a full understanding of any and all obligations and requirements under relevant data protection legislation.

Communication is also critically important, i.e., appropriate disclosure of what data is being collected and how it is stored. It’s also important to learn about and put in place the appropriate security measures to guard data, and to implement the necessary policies on deleting data a sports team no longer needs. The digital revolution engulfing sports has many challenges to overcome, but the point is that whether in sports or business, when data becomes an important asset that drives important decisions and competitiveness, it needs to be protected like any other important asset.

We are in March.  The minds of many turn to March Madness as the NCAA hosts its annual tournament to crown college basketball’s national champion.  Of these, many want to take advantage of the tournament to promote their products or services.  However, this phrase is trademarked, and the owners are active in policing and protecting their mark, as sponsors pay large amounts for association with the championship.  It is important therefore to be careful of using “March Madness” in promotions and advertisements, as these uses could bring trouble.

“March Madness” – a Trademarked Term?

Yes, it is.  This, however, does not mean that newscasters, sports reporters or morning DJs can’t talk about the tournament using the name of the event. Instead, what it means is that commercial uses of the term that could imply some association with the event for which sponsors pay money, can be problematic – and could cost you or your sponsor money or time defending the use. So the safest way to avoid issues is to avoid the trademarked phrase in promotions and advertisements.

The NCAA was not the first to employ the March Madness theme for a basketball championship.  That honor goes to the Illinois High School Association. But those rights have been acquired, and are now protected vigorously by the NCAA (including associated marks such as “Final Four” and “Elite Eight”).  Marks objected to in the past by the NCAA include “April Madness” (for entertainment service), “Markdown Madness” (for auto sales services), “Skate Madness” (for skateboarding competitions) and “Freestyle Madness” (for various entertainment services).

Safe use.

In considering how best to use “March Madness” in a commercial setting, it is important to note that using the term in a manner where it is simply describing the event rather than for an attention-getting headline is more likely to be perceived as fair.  For example, in noting a list of events and other features, an ad may say, “During the March Madness tournament, we will be serving flights and celebrating the individual athletes from our home team.”  Using the term close to the event date rather than well in advance is also more likely to be perceived as fair, and not trading on the excitement that surrounds the games outside the context of the tournament itself.  The same considerations apply to sales of merchandise.

So be careful out there, and enjoy the games.

The Cleveland Indians are back in the World Series for the first time in nineteen years, and with it have come renewed protests over the team’s name and Chief Wahoo logo, a depiction some consider a highly offensive caricature.  This puts the team into the middle of a sustained and often emotional debate. Many people vigorously oppose the use of Native North American names and images as mascots and logos, saying they are demeaning and worse. The Chief Wahoo logo in particular stands out because it is a caricature.

It’s no secret that brands are big business and that most established businesses, large or small, make great effort to create brand awareness through consistent use of logos with their name. The names and logos are usually legally protected with a registered trademark. Creating brand recognition takes time, so it is not something that should be changed often.  When Tropicana tried to rebrand their orange juice packaging, sales plummeted and it was “a customer-relations fiasco” according to Advertising Age.  A SmartPlanet article analyzed some failed attempts at rebranding. The Gap’s brief logo change is one for the history books. All these brands ended up returning to logos that were tried and true.

All of this may soon be coming to a head.

Last December, the United States Court of Appeals for the Federal Circuit decided a case called In re Tam, in which it overruled the Trademark Office’s refusal to register “The Slants” as a trademark for a music group, finding that the term was disparaging to individuals of Japanese extraction. In a 9-3 decision, the Federal Circuit ruled that by barring registration of such trademarks, the disparagement provisions of Section 2(a) violates the First Amendment’s protection of freedom of speech. Tacitly acknowledging that their ruling would likely unleash a torrent of trademarks that many consider offensive, the court concluded:

Whatever our personal feelings about the mark at issue here, or other disparaging marks, the First Amendment forbids government regulators to deny registration because they find the speech likely to offend others. Even when speech “inflict[s] great pain,” our Constitution protects it “to ensure that we do not stifle public debate.”

The Trademark Office was widely expected to, and last month did, ask the Supreme Court to review the Federal Circuit’s decision in In re Tam. In a related move, Pro-Football, Inc. took the unusual step of asking the Supreme Court to hear its appeal of the federal district court decision cancelling six registrations for the Washington Redskins trademarks – which has not been ruled upon yet by the Court of Appeals – as part of the Slants appeal.

The Slants and Redskins cases both turn on the “disparaging” clause of Section 2(a). But if the Supreme Court decides to take on one or both of these cases, the statute’s bar on “immoral” and “scandalous” marks could easily be addressed at the same time: the constitutional issues are pretty much identical.  In the meantime, the Trademark Office – presumably seeking to avoid getting itself into any more controversy – has announced that action on applications that raise any of these Section 2(a) issues will be indefinitely suspended pending further court action.