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The National Collegiate Athletic Association (NCAA) is a non-profit organization that has long regulated the manners in which student-athletes may be compensated by their colleges and universities for playing on “amateur” collegiate-level sports teams. The term “student-athlete” was coined in the 1950’s by Walter Byers, the NCAA’s first executive director, and it has been used in the industry and by courts to describe these players ever since. While student-athletes have historically received scholarships, the NCAA has essentially prohibited student-athletes from receiving benefits beyond the cost of education. These restrictions have also included the inability of student-athletes to profit from their name, image, and likeness pursuant to their scholarship agreements. Name, image, and likeness (“NIL”) is an intellectual property right that protects against the misappropriation of an individual’s name, image, and likeness for commercial benefit. Such NIL limitations have been a major source of conflict between the NCAA and student-athletes, with the NCAA maintaining the upper hand over the years. However, the tides just turned.

In NCAA v. Alston, a 2021 antitrust class action lawsuit filed by current and former student-athletes against the NCAA, the U.S. Supreme Court reviewed a challenge to the NCAA’s student-athlete compensation rules. Specifically, the student-athlete class argued that the NCAA’s rules were in violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1, which prohibits “contracts, combinations, or conspiracies in restraint of trade or commerce.” A unanimous Court reviewed “only the subset of NCAA rules restricting education-related benefits” and found the NCAA in violation of the Sherman Act on June 21, 2021. Notably, the Court highlighted the “uncontested” fact that the NCAA “enjoys monopsony control in the relevant market–such that it is capable of depressing wages below competitive levels for student-athletes and thereby restricting the quantity of student-athlete labor.”

Even before NCAA v. Alston, however, several states had legislation in the works on the issue of student-athletes profiting in the NIL sphere. For example, California passed the Fair Pay to Play Act in September 2019 and Colorado adopted a similar law in March 2020, both of which were set to become effective in 2023. Florida was the third state to pass NIL legislation, but its bill had a much earlier effective date of July 1, 2021. However, in the wake of NCAA v. Alston, the NCAA announced an “interim” NIL policy on June 30, 2021, allowing student-athletes to “engage in NIL activities that are consistent with the law of the state where [their] school is located.” Now, student-athletes in some states can monetize their social media platforms, sell merchandise and autographs, and enter into endorsement deals subject to certain limitations set by their schools. This will make way for student-athletes to create their own brands by filing trademark applications.

The case referred to herein is NCAA v. Alston, No. 20-512, slip op. (U.S. Jun. 21, 2021)

The German sportswear brand Adidas has long defended its famous stripes trademark, having filed over 40 lawsuits in the past against the likes of Abercrombie, Skechers, J. Crew, and Target, among others.  Adding to that list, Adidas recently brought suit against Thom Browne (“TB”) for trademark infringement and dilution in the Southern District of New York, alleging that TB is “selling athletic-style apparel and footwear featuring two, three, or four parallel stripes in a manner that is confusing similar to Adidas’s three-stripe mark.”  The federal complaint comes on the heels of an unsuccessful mediation between the parties dating back to November 2020.  TB countered the allegations in the complaint by contending that Adidas consented for over 10 years and is now changing its mind over TB’s striped apparel and footwear.

 The U.S. Patent & Trademark Office is drafting rules for two new proceedings that will be available to the public by December 27, 2021: Expungement proceedings and Reexamination proceedings.[1]

 In the future Expungement proceedings, third parties will be able to request cancellation of some or all of the goods or services in a registration because the registrant never used the trademark in commerce with those goods or services. 

 In the future Reexamination proceedings, third parties will be able to request cancellation of some or all goods or services in a registration on the basis that the trademark was not in use in commerce with those goods or services on or before a particular relevant date. 

 The USPTO believes that these new proceedings will give U.S. businesses “new tools to clear away unused registered trademarks from the federal trademark register.”

General Motors’ “Super Cruise” features semi-automated driver assistance technology that allows a driver to employ hands-free driving while all on the highway. General Motors recently brought suit against Ford, alleging that Ford’s “BlueCruise” name – a hands free highway driving system – was too similar to that of GM’s Super Cruise trademark. The lawsuit was filed in the Northern District of California, and claims that Ford’s decision to use BlueCruise will inevitably cause confusion and a false association between the two companies. A Ford spokesperson has called the claim “meritless,” and asserts that the term “cruise” is a common and well known term in the industry. For its part, GM is seeking monetary damages and an injunction pertaining to the “BlueCruise” mark, and claims that because attempts to resolve the dispute amicably were unsuccessful, GM was left with no option but to protect its brand.