IOC Goes For Gold In Trademark Suit Over Logan Paul – Kevin Durrant Sports Drink

The FTC recently announced a new rule to combat fake consumer reviews and testimonials. Scott Hervey and Jessica Marlow explain how this decision will impact businesses and the influencer marketing industry in this episode of The Briefing. Watch this episode on the Weintraub YouTube channel. Show Notes: Scott: On August 14th, 2024, the Federal Trade Commission announced a final rule that will combat fake reviews and testimonials. All parties involved in influence or marketing or companies that have significant e-commerce businesses need to know about these rules, what they prohibit, and the consequences for violating them. Joining me to break down these new rules is fellow Weintraub partner Jessica Marlow on today's installment of The Briefing. Jessica, welcome back to The Briefing. It's been a while. Jessica: It has. Thank you for having me. Scott: Good to have you back. We're talking about one of your favorite topics, influencer marketing. Jessica: Absolutely. FTC, they're coming up with new rules all the time, so I'm excited to dig in. Scott: Yeah. Well, so let's start out with a rule that I think a number of online brands, companies that have significant online businesses, will find maybe problematic. So the FTC says that it's an unfair or deceptive act or practice and a violation for a business to provide compensation or other incentives in exchange for the writing or creation of consumer reviews expressing a particular sentiment, whether negative or positive, regarding a product, service, or business that is the subject of the review. In other words, no pay-to-play for consumer reviews. Now, according to the FTC notes, this section doesn't address testimonials such as a blogger or an influencer paid review. This section only applies to consumer reviews. Also, the FTC pointed out that this section doesn't prohibit paid or incentivized consumer reviews, only those where the compensation is provided in exchange for expressing a specific sentiment. Jessica: What about a campaign where a brand solicits positive feedback on a product in exchange for a discount on a future purchase? Something like, Tell us how much you loved our product, and we'll give you 10% off your next purchase. Scott: The FTC that just because a business expects a review to be positive doesn't mean that there is an express or an implied requirement that the review needs to be positive to obtain an incentive. The condition that the review needs to be of a particular sentiment in exchange for the incentive, it needs to be expressed or implied by the circumstances. However, let's be clear that review gating, where a business only asks for positive reviews for customers while filtering out negative views, is itself illegal. Jessica: The rule also says that companies are prohibited from creating, writing, or selling fake reviews or testimonials. This would prohibit reviews attributed to a person that doesn't exist. This would include AI-generated fake reviews, but not necessarily AI-generated summaries of actual reviews or reviews by real people who do not have actual experience with the business, its products, or its services, or that maybe misrepresent their experience of the person giving it. The rule also prohibits businesses from buying fake reviews or testimonials or disseminating such reviews or testimonials when the business knew or should have known that the reviews or testimonials were fake or false. Something to think about for brands or agencies that contract directly with influencers. Make sure that your agreement requires actual use of the reviewed product and that the review reflects the reviewer's actual experience. Scott: Yeah, I agree with that. I think having that rep and warranty in an agreement is a way that a business can say, Well, there's no way that I should have known that these testimonials given by this person are fake. They had no personal knowledge of the product or these reviews or ...

Punchbowl News won the trademark infringement lawsuit filed by greeting card and event planning company, Punch Bowl Inc., despite a previous setback at the Ninth Circuit. Scott Hervey and Jamie Lincenberg discuss this recent development in this installment of The Briefing.     Cases Discussed: Rogers V. Grimaldi Jack Daniels Properties Inc. Versus VIP products Punchbowl, Inc. V. Aj Press, Llc Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: Despite a 2022 setback at the Ninth Circuit, Punch Bowl News ultimately came out a winner in a trademark infringement lawsuit bought by a greeting card and event planning company, Punch Bowl Inc. I'm Scott Hervey from Weintraub Tobin, and today I'm joined by Jamie Lincenberg. We are going to talk about this case again and the future of trademark infringement cases in light of the recent changes to the applicability of the Rogers Test on this next installment of The Briefing. Jamie, welcome back to The Briefing. Jamie: Thank you, Scott. It's nice to join you here again. Scott: Do you remember talking about this case in 2022 when we covered the appeal to the Ninth Circuit? Jamie: I sure do. Yeah. Scott: I think it's good to give some closure to this case since we already covered it. Why don't Let me start with the case? Punchbowl Inc. Is an online technology company whose product is online invitations and online greeting cards. It has been using the mark Punchbowl since 2006, and it has a federal trademark registration covering the mark. AJ Press was founded by two journalists who used to write for Politico. AJ Press operates Punch Bull News, a subscription-based online news publication that covers in American government and politics. Given the publication's focus on federal politics, AJ Press chose Punch Bowl because that's the nickname the Secret Service uses to refer to the US Capitol. It makes sense if you think about the capital turned upside down. It looks like a Punch Bowl. The title Punch Bowl News was selected to elicit the theme and geographic location of the publication. Punch Bowl, the technology company, sued for trademark infringement, and the district court granted AJ Press's motion to dismiss on the grounds that their use of punch bowl did not give rise to liability under the Rogers test because it constituted protected expression, and it was not expressly misleading as to its source. Jamie: So, I think we should revisit the Rogers test. Scott: Yeah, let's do that. Jamie: The Rogers test comes from the 1989 Second Circuit case of Rogers versus Grimaldi. The case involved a lawsuit brought by Ginger Rogers concerning the film entitled Fred and Ginger, which was about two Italian cabaret performers whose act emulated the dance routines of Fred Astaire and Ginger Rogers. In that case, the district Court and the Second Circuit on Appeal both said, the use of a third-party mark in an expressive work does not violate the Lanham Act if the title has artistic relevance to the underlying work, and if it has some artistic relevance, that it's not explicitly misleading as to the source of the content of the work. This then became known as the Rogers Test. Scott: Applying the Rogers Test, the lower court and the Punch Bowl case dismissed trademark claims, and the Ninth Circuit upheld the lower court's dismissal. However, in the weeks following the Ninth Circuit's opinion, the Supreme Court granted cert for Jack Daniels Properties Inc. Versus VIP products, otherwise known as the Squeaky Dog Toy case. The Ninth Circuit stayed its original decision in the Punch Bowl case to wait the Supreme Court's decision. Now, the Jack Daniels Properties versus VIP Products dispute involved the claim by Jack Daniels that this dog toy, Bad Spaniels, infringed a number of Jack Daniels trademarks. At the district Court and on appeal at the Ninth Circuit, the issue in the Jack Daniels case was framed as to wheth...

The US District Court for the Northern District of Ohio issued an opinion in Hayden V. 2K Games, Inc. that could potentially put an end to tattoo copyright cases. Scott Hervey and Tara Sattler discuss the court's opinion on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: Earlier this year, we discussed a jury ruling in Hayden versus 2K Games, Inc, where a jury in the US District Court for the Northern District of Ohio found video game publisher Take-Two Interactive not liable for copyright infringement for a video game that incorporated a depiction of certain tattoos on LeBron James in the game NBA 2K. After the jury verdict, the plaintiff moved the court for a judgment as a matter of law. The court denied the motion and issued an opinion that may potentially put an end to these types of tattoo copyright cases. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by frequent Briefing contributor Tara Sattler. We're going to talk about the court's opinion in Hayden versus 2K Games next on The Briefing. Tara, welcome back. It's been a while. Tara: Thanks, Scott. Glad to be back. Scott: So, Tara, can you give us a rundown of the facts in this case? Tara: Yes, absolutely. So Solid Oak, a licensing firm that represents the go-to tattoo artist for NBA players, sued Take-Two Interactive software, the game publisher behind the popular NBA 2K basketball video game, alleging that the game maker's depiction of LeBron and his tattoos infringes the tattoo artist copyrights in six tattoos. In ruling on the video game publisher's motion for summary judgment, the court found that the publisher had an implied license to depict the tattoos in the video game. An implied license exists where one party created a work at the other's request and handed it over, intending that the other copy and distribute it. The court in this case that the players had implied licenses to use the tattoos as elements of their likenesses and the defendant's right to use the tattoos in depicting the players derives from these implied licenses. A crucial element of the court's finding the tattoo artist knew their subject was likely to appear in public, on television, in commercials, or in other forms of media. After the jury verdict, the plaintiff then filed post-trial motions asking the judge to overturn the jury verdict or grant a new trial, which the judge denied. Scott: Before we go on, let's have a quick review of what an implied license is. An implied license is basically permission to use a copyrighted work that's inferred from circumstances and conduct rather than explicitly granting it in writing. In this case, the question was whether Hayden's actions in tattooing LeBron James implied that he, Hayden, was giving permission for the tattoos to be depicted as part of LeBron's likeness in various media, including video games. Tara: Let's focus on the evidence the court looked to in upholding the jury's finding of an implied license. We will talk about how this analysis will impact future similar cases and also provide some guidance to creators who may feature a person's likeness, either actually or in some type of digital replica. Scott: There was testimony that NBA players like LeBron James expressly give the NBA and the Players Association the right to license their likeness, which those organizations then licensed to video game companies and others. But I think the most compelling evidence, the evidence which supported the implied license were the following two pieces of evidence. First, the fact that James had appeared, LeBron James had appeared in numerous NBA 2K games with his tattoos for years before getting tattooed by Hayden. Second, despite Hayden knowing that James was a star athlete and that he also had appeared as an avatar in video games, Hayden admitted that he never told James that he, meaning James,

A New York Judge dismissed former Rep. George Santos' lawsuit against Jimmy Kimmel Live over the late-night host’s use of personalized Cameo videos in one of his segments. Scott Hervey and Tara Sattler discuss this decision on this installment of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: I can see the situation unfolding in the writer’s room for Jimmy Kimmel Live. How can they show that former US Representative George Santos would say just about anything for money and have that be extremely funny? The resulting prank video skit got a bunch of laughs and a copyright lawsuit. However, a recent decision by the US District Court for the Southern District of New York ended Santos' lawsuit. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by my colleague Tara Sattler, to discuss this case and its implications on the television and media industry on today's installment of the briefing. Tara, welcome back. It's great to have you. Tara: Thanks, Scott. I'm glad to be here. Scott: Tara, by chance, have you seen these George Santos cameo videos? Tara: I have, and they really are quite hilarious. Scott: Yeah, they are. I could see why the writers for Jimmy Kimmel Live pitch this. But why don't you give our listeners a quick summary of the facts? Tara: Certainly, this case stems from George Santos creating personalized videos on the Cameo platform after he was expelled from Congress. Jimmy Kimmel and his show created fake cameo accounts and requested 14 absurd videos from Santos, which they received and then aired on Jimmy Kimmel Live as part of a segment called Will Santos Say It? As part of the segment, Kimmel made jokes about Santos, including about his federal wire fraud case to which Santos pled guilty. Now, the Cameo terms of service say that the talent, who in this case would be Santos, owns the copyright in the video. Cameo offers two types of to the user who requests the video. However, both licenses specifically exclude television exploitation. Scott: Right. If you're Santos, you're thinking, I own the copyright, and the license granted to the account owner specifically excludes television. So, of course, Santos, Seuss, Kimmel, ABC, and Disney for copyright infringement and a couple of related claims. Disney and the rest of the defendants moved to dismiss, arguing that their use of the videos constituted fair use. The court granted the defendant's motion to dismiss. The key issue was whether Kimmel's use of the videos qualified as fair use under copyright law. Now, as we know, Tara, because you and I have done a lot of podcasts on the Andy Warhol Foundation Supreme Court case, this case is post-Warhol, which essentially tightened up fair use, where the focus is on the purpose of the use and whether purpose justifies the copying. Tara: True. We recall that the Supreme Court in Warhol specifically called out criticism as a purpose that justifies copying. Scott: That's exactly what the defendant said and what the court relied on in finding fair use. The court said that Kimmel's use was clearly for the purpose of criticism and commentary on a newsworthy public figure. The court emphasized that Kimmel was using the videos to criticize Santos's willingness to say absurd things for money shortly after being expelled from Congress for, albeit fraudulent activity. The court saw this as political commentary that did supersede the original purpose of the videos. Tara: There was some interesting discussion about the fake accounts that late-night showwriters used to solicit these videos. The court acknowledged that Kimmel's conduct may have been deceptive, but that doesn't matter for fair use purposes. Sources. They cited Warhol for the fact that fair use is an objective inquiry into how the work is used, not the subjective intent or good faith of the user. So, while Kimmel's methods may have been questionable,

A group of senators introduced an update to the ‘No Fakes Act,’ which protects the voice and visual likeness of individuals from unauthorized AI-generated recreations. Scott Hervey and James Kachmar discuss the changes to this act on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: Senators Chris Coons, Marsha Blackburn, Amy Klobuchar, and Thom Tillis introduced an update to the ‘Nurture Originals Foster Art and Keep Entertainment Safe Act’ or the ‘No Fakes Act,’ which the four senators previously released last October. I'm Scott Hervey, and I'm joined today by James Kachmar, and we're going to talk about the ‘No Fakes Act’ or the update to the ‘No Fakes Act’ on this installment of The Briefing. James, welcome back to The Briefing. It's been a while. James: Good to see you, Scott. Thanks for having me. Scott: We have a fun one today, the ‘No Fakes Act.’ The purpose and intent of the ‘No Fakes Act’ is to prevent the creation and use of a digital replica of an individual without that person's consent. Let's dive into how this proposed act accomplishes this and what the liabilities are for violations of the act. First and foremost, the act creates a new federal property right to authorize the use of a person's voice or visual likeness in what's called a digital replica. Now, a digital replica is defined in the act as a newly created, computer-generated highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual. Now, this right, the right to control a digital replica or grant rights in a the original replica, survives postmortem and is transferable, licensable, and exclusive to the individual, the executors, the heirs or licensees or devices of that individual for an initial ten years, renewable for a rolling five-year period with a cap of 70 years. That's postmortem. As I said, this right is licensable. Interestingly, the act says that a license can only have a term of ten years. James: Okay, Scott, why don't we look at what the essence of the act is? It basically creates liability for one, the production of digital replica without consent of the applicable right holder, and two, publishing, reproducing, displaying, distributing, or transmitting, or otherwise making available to the public a digital replica without the consent of the applicable right holder, where such acts affect interstate commerce. It is not a defense to liability if the defendant displayed or publicly communicated a disclaimer stating that the digital was unauthorized or generated through artificial intelligence. Liability requires actual knowledge through either the receipt of notice from the right holder or a person authorized to act on behalf of the right holder or an eligible plaintiff, or from the willful avoidance of actual knowledge that the material is an unauthorized digital replica. Scott: Now, the act allows for a private right of action by the rights holder, and it also allows for a private right of action by any other person that controls, including through a license, the right to exercise or the right to use the rights holder's voice or likeness. The act is not clear whether this license needs to be exclusive in order to sue for a violation of the act, like under copyright or if it can be non-exclusive and still have the right to sue. James: The act also allows for a private right of action for record labels. In the case of digital replica involving either a sound recording artist who has entered into a contract for their exclusive sound recording artist services, or any artist who has entered into an exclusive license to distribute or transmit one or more of their album or works that capture their performance. This is similar to what you and I had talked about some time ago about Tennessee's Elvis Act. Scott: Right, it is. James: There's also a three-year statute of limitations ...

The Trademark Trial and Appeal Board often consider wine, beer, and non-alcoholic beverages related when determining the likelihood of confusion despite there being no per se rule on the matter. Scott Hervey and Jamie Lincenberg discuss the TTAB's long-standing opinion on this episode of The Briefing. Read Scott's article on the IP Law Blog. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: In October 2014, I wrote an article for our law firm's blog, remember those? That discussed the Trademark Trial and Appeal Board's tendency to find wine, beer, and non-alcoholic beverages related for the purpose of determining likelihood of confusion. Now, the T-TAB has repeatedly said that there is no per se rule that all beverages are related for Section 2D refusal purposes. But really? Now, most consumers see wine, beer, and non-alcoholic beverages as unrelated products and would not believe, even if they shared a similar trademark element, like a similar word or design, that they're related or that they emanate from the same source. However, the Trademark Trial and Appeal Board seems to always find otherwise. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by my colleague and frequent Briefing contributor, Jamie Lincenberg. I thought it would be interesting to revisit this topic ten years later. So today, we're going to take an updated look at beer, wine, water, and likelihood of confusion on today's episode of The Briefing. So, Jamie, welcome back. Jamie: Thank you, Scott. I'm happy to be here and to revisit this topic with you. Scott: Great. So, like all, one of the things I think the best place to start is at the beginning, and that's with the 1992 decision in In re Saler Brew, Fron Salier. That case seems to be the first time that the Trademark Trial and Appeal Board showed that it was receptive to the argument that wine and beer are related for 2D likelihood of confusion purposes. In that case, the Trademark Trial and Appeal Board found that the marks Christopher Columbus for beer, confusingly similar to the mark Cristobal Cologne and Design for Sweet Wine. The T-TAB found persuasive third-party registrations introduced by the Trademark Examiner, showing that a number of companies have registered their marks for both beer and wine. Jamie: Following that case, the T-TAB adjudicated a number of non-precedential cases in which the T-TAB found beer and wine related. For example, in In Re Stone Street, LLC, the T-TAB found the mark Buckeye for wine, confusingly similar to the Mark Buckeye sparkling dry for beer. Similar to In Re Saylor Brow, the T-TAB found persuasive third-party registrations covering both beer and wine. The applicant in Stone Street argued that another federal circuit case regarding the Mumm champagne brand required a finding that beer and wine are not related. However, the T-TAB was not persuaded. The record in Mumm demonstrated the Mumm brand champagne to be a premium sparkling wine marketed by one of France's top quality champagne producers. The record in Stone Street lacks any such distinction. Scott: Then, in 2011, the T-TAB issued a presidential opinion on the continuing conflict of beer and wine. Now, that case involved a refusal to register the Mark HP for wine based on the likelihood of confusion with the Mark HP and design for beer. The T-TAB found persuasive third-party registration submitted by the trademark examiner that covered both beer and wine, as well as third-party web pages for companies that make and sell both beer and wine. The T-TAB stated as follows: the third-party registration evidence and the website evidence together amply demonstrate the relatedness of beer and wine and show that consumers if they encounter both goods sold under confusingly similar marks, are likely to believe that they emanate from the same source. Jamie: Then 2013 was when the T-TAB began expanding the scope of goods related to wine and also li...

'Gabby's Table' was denied registration in a major Trademark decision that impacts affiliate marketing. Weintraub attorneys Scott Hervey and Jamie Lincenberg break down what this means for your business in this episode of "The Briefing" Watch this episode on the Weintraub YouTube channel here and listen to the full podcast here. Show Notes: Scott On July 1st, 2024, the US Trademark Trial and Appeal Board issued a precedential decision that has great implications in today's world of affiliate marketing. In the decision of In re Gayle Weiss, the T-Tab upheld an examiner's refusal to register the mark Gabby's Table for computerized online retail store services in the field of cooking utensils, cookware, etc. Because the specimen submitted by the applicant, the Gabby's Table website, failed to show the mark used in commerce in connection with the identified services. I'm Scott Hervey from Weintraub Tobin, and today I'm joined by Jamie Lincenberg. Today, we're going to break down this decision and its implications for affiliate marketing on today's episode of “The Briefing.” Jamie, welcome back. It's been a while.   Jamie Thanks, Scott. Yeah, it's nice to join you again.   Scott Always great to have you, Jamie. But let's dive into this presidential decision by the Trademark Trial and Appeal Board. As I said in the opening, the TTAB case results from an applicant's appeal from a trademark examiner's refusal to register the Gabby's table, Trademark for online retail store services. I think the main point of this decision is to clarify the boundaries of what can and cannot be considered retail store services, especially in the digital age where online businesses blur traditional lines. This decision also shows the critical issue of providing acceptable specimens of use during the trademark registration process.   Jamie Before we get into that, can I point out a procedural issue highlighted by the TTAB that is an important thing to highlight here?   Scott Yeah, absolutely. Go for it.   Jamie Before the board got to the core of the appeal, the board addressed the applicant's request that the board take judicial notice of certain third-party registrations and follow a hyperlink for information regarding Amazon affiliates. The board denied both of those requests. They emphasize that evidence must be submitted properly through a request to suspend the appeal and remand the application for further examination. This aligns with established procedures which require a formal process to introduce new evidence after an appeal has been filed.   Scott Yeah, Jamie, that's great. That's a really important procedural point to make because it seems to be something that comes up frequently in TTAB disputes. So, practitioners who are appealing an examiner's refusal to register and want to introduce new evidence, evidence that was not introduced during the office action, and response to office action procedures, you need to suspend the TTAB proceeding or mandatory examining attorney and introduce new evidence on the record that way. Now, let's get to the point of the case. Digging into the heart of the decision, the specimen abuse. For those unfamiliar with what a specimen is, it's essentially a sample that shows how a trademark is actually being used in commerce. The specimen needs to create a direct association between the mark and the services it represents.   Jamie In this case, the applicant specimen was a web page featuring products recommended by the applicant with a “Buy Now” button. The problem was that clicking this button didn't lead to a purchase directly from the applicant; instead, it redirected users to third-party websites like Amazon, where the products could then be bought.   Scott Right. And the TTAB found that this did not constitute an acceptable specimen because it didn't show the applicant providing the retail services directly. Instead,

In Blue Mountain Holdings v. Bliss Nutraceuticals, the 11th Circuit upheld a U.S. District Court finding that Lighthouse Enterprises issued a naked license to Blue Mountain, which covered the trademark in question. Scott Hervey and Eric Caligiuri discuss this case and how to avoid bearing the risks of a naked license in this featured episode of The Briefing. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: The trademark dispute in Blue Mountain Holdings versus Blitz Nutraceuticals ended with the 11th Circuit upholding the finding by the US. District Court for the Northern District of Georgia that Lighthouse Enterprises had issued a naked license to Blue Mountain, which covered the trademark that was the basis for the dispute. We're going to talk all about the naked license on this installment of The Briefing by Weintraub Tobin. Thanks for joining us today. My name is Scott Hervey. I'm joined by my colleague, Eric Caligari. Eric, thanks for joining us today. Eric: Thanks for having me, Scott. Scott: Eric, can you give us some background on the case of Blue Mountain Holdings versus Bliss Nutraceuticals? Eric: Yes, of course. Lighthouse Enterprises and Blue Mountain Holdings initially sued Bliss in April of 2020 for federal trademark infringement, federal cybersquatting, and federal trademark dilution, along with some other claims. The lawsuit was based on their ownership of the trademark, Vivazen Botanicals claimed that had been selling Vivazen products since 2012 and registered the name as a trademark with the United States Patent and Trademark Office in 2017. Blue Mountain claimed that it acquired the Vivazen trademark and a 2019 purchase agreement with Lighthouse. Bliss claimed that this purchase agreement was really a license. The district court agreed with Bliss and found that the purchase agreement was really a license and that this license became a naked license when Lighthouse failed to police Blue Mountain's use of the trademark. This resulted in the abandonment of Lighthouse's rights in the trademark, and the 11th Circuit upheld the district court's findings. Scott: While this case itself is very interesting, and it's probably far from being over, what I want to focus on today is the ramifications of the court's finding that the transaction between Lighthouse and Blue Mountain was a naked license. A naked license refers to a situation where a trademark owner grants permission to another party to use a trademark, and that trademark owner does not maintain proper control over the quality and nature of the goods or services associated with that trademark. In other words, it's a license that lacks the necessary safeguards to ensure that the trademark's reputation and distinctiveness are maintained. The nakedness of a license isn't judged by whether the licensor allows product quality to suffer. It's whether the license or is keeping an eye on product quality, and whether, in other words, it has abandoned quality control or not. If it has, the license is naked and the trademark is abandoned. Eric: Yeah, and if a trademark is abandoned, whatever rights the mark owner may have had in the mark are also abandoned. It's quite a serious situation and result to avoid. Scott: I agree. And given this, let's talk about how to avoid the granting of a naked license. Eric: Yeah, sure. Well, first of all, when entering into a license agreement, that agreement should be in writing, and the right agreement should fully outline the terms and conditions that the licensee must adhere to. These terms should include provisions such as quality control and the consequences of failing to meet those quality control standards. Scott: And it's not enough that the agreement includes proper quality control language; but it's imperative that the trademark owner actually exercise proper control over the products or services that are associated with the trademark.

Weintraub attorneys Scott Hervey and Jessica Marlo explore the US Olympic Committee's lawsuit against Prime Hydration, co-founded by Logan Paul, for using Olympic trademarks in their ad campaign with Kevin Durant. Discover the power of Olympic trademarks and their protection! Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here. Show Notes: Scott The United States Olympic and Paralympic Committee has filed a lawsuit in the United States District Court for Colorado against Prime Hydration, a sports drink company co-founded by social media influencer Logan Paul. The complaint alleges that Prime Hydration's ad campaign featuring NBA star and Team USA member Kevin Durant infringes numerous Olympic trademarks. I'm Scott Hervey from Weintraub Tobin, and I'm joined today by my colleague and huge Olympic fan, Jessica Marlo. We are to talk about this case and the unique aspects of Olympic trademarks in this installment of “The Briefing.”   Jessica, welcome back to “The Briefing.”   Jessica Thank you for having me.   Scott Jessica, I know your absolute fascination with the Olympics runs deep, so I thought this would be a fantastic topic to discuss with you.   Jessica Absolutely. This is the perfect marriage of all of my favorite things. Having been a gymnast, going to the Olympic Gymnastics Trials every four years and working in the brand and licensing space, this is everything bundled into one. So I'm very excited to talk about this.   Scott The trifecta. The gold, the gold medal, as they say. We're about halfway into the Paris Olympics, but this lawsuit was filed just before the Paris Olympics started. But let me give you a little background on the Olympic trademarks. Under the Ted Stevens Olympic Amateur Sports Act, Congress granted the USOPC, exclusive ownership of certain Olympic-related words and symbols, including the name United States Olympic Committee, the words Olympic, Olympian, going for the Gold, Team USA and the International Olympic Committee's symbol of the five interlocking rings. The act also permits the USOPC to authorize its contributors suppliers to use these Olympic-related words and symbols, and it also allows the USOPC to initiate lawsuits to address unauthorized uses. The USOPC's rights are strong, and they were acknowledged as such by the Supreme Court in San Francisco Arts and Athletics versus the United States Olympic Committee, which involved a suit to injoin San Francisco Arts and Athletics use of Gay Olympic Games.   The Court noted that the legislative history demonstrated that Congress intended to provide the USOPC with an absolute monopoly over the use of the word Olympic. It doesn't matter whether any unauthorized use of the word tends to cause confusion or not. All uses by parties other than the USOPC and those they authorize are prohibited, absolutely prohibited. Third-party marks that contain the designated Olympic-related words or symbols or any combination thereof cannot be registered on either the principle or the supplemental register, and nor can that matter be disclaimed. Those marks must be refused registration by the US Patent and Trademark Office on the grounds that the mark is not in lawful use in commerce. The US Olympic Trademark rights, they're stronger than normal trademark rights, as you can see.   Jessica Absolutely. The USOPC and its international counterpart, the IOC, are extremely diligent in protecting the Olympic marks, and this is all driven by revenue generated from sponsors. So Olympic sponsorships are the second biggest revenue source for the IOC right behind its broadcast rights. Sponsors pay hundreds of millions of dollars to be the exclusive sponsors of the Olympic Games, and Olympic organizers are required to make sure no one gets a free ride.   Scott That's right. And with the 2024 Paris Olympic Games underway,

Tracy Anderson, the mastermind behind the Tracy Anderson Method, sued ex-trainer Megan Roup for allegedly stealing her routines and licensing them to Equinox. The US District Court just ruled against Anderson’s copyright claim. Join Scott Hervey and Jamie Lincenbergfrom Weintraub Tobin on "The Briefing" as they discuss the case’s impact on fitness entrepreneurs. Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here.   Show Notes: Scott Exercise is a multi-million-dollar business, and nobody knows that better than Tracy Anderson, celebrity fitness trainer and creator of the Tracy Anderson Method. The Tracy Anderson Method is a fitness routine that combines choreography, fitness, and cardiovascular movement, and it served as the foundation for multiple exercise studios and 19 home videos. Anderson sued one of her former trainers, Megan Roup, for ripping off her routines to create her own choreography-based dance cardio workout, which Roup later licensed to rival gym chain Equinox Holdings. The US District Court for the Central District of California recently ruled on Rupp's motion for summary judgment, denying Anderson's relief on her copyright claim. I'm Scott Hervey from Weintraub Tobin, and I am joined today by Jamie Lincenberg. We're going to talk about exercise routines and copyright and what this case means for celebrity trainers and fitness entrepreneurs in this next installment of “The Briefing.” Jamie, welcome back to “The Briefing.”   Jamie Thanks, Scott. It's Good to be here and to get into this case. I've actually done the Tracy Anderson method and Megan Roup's classes.   Scott That's great. That's great. You speak from first-hand experience, so this is great. Exactly. All right, so let's talk about the cases. The facts are fairly straightforward. Anderson is a fitness trainer who developed the Tracy Anderson method. She has studios in LA, New York, Madrid, London, and she's got merch, lots and lots of merch. She has truly built a fitness empire. Roup was a trainer in a Tracy Anderson gym from about 2011 to 2017. And Roup signed a trainer agreement upon her employment, which contained a mostly standard confidential information provision, which identified workouts, movements, exercise, routines, exercise formulas, nutrition advice, content, sequences, dances, muscular structure, work, and equipment as being, “confidential information”. After Roup left Anderson's employment, she founded TSS, another choreography-based dance cardio workout.   Jamie Two weeks after terminating her employment with Tracy Anderson in February 2017, Roup sent emails to potential clients, including clients of Anderson's, announcing her development of TSS, her choreography-based dance cardio workout. In March 2017, Roup announced on social media her launch of TSS, equals Equinox licensed TSS from Roup, and while working with Equinox, Roup prepared an instructor training manual for TSS, which Anderson alleges included much of the same information contained in Anderson's confidential training materials.   Scott So after some initial law in motion, Anderson's remaining claims were whittled down to copyright infringement and breach of contract. Roup then moved for summary judgment on both of those remaining claims. So as to the copyright claim, Anderson asserted that Roup infringed on the copyrights Anderson has in her home videos since the videos copy the choreography, movements, sequences, and the routines from the videos. Anderson is in arguing that Roup copied the home videos themselves, but that she copied the underlying routines that are captured on the footage. Anderson believes that the copyrights in the home videos extend to the routines that are captured in the home videos.   Jamie So, Roup didn't dispute the similarity between hers and Anderson's exercise dance routine. However, she does argue that Anderson can't prove its copyright claim because A...