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UtBlaw

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Posts posted by UtBlaw

  1. 1 hour ago, ousux said:
    2 hours ago, Bamboozled73 said:
    Bags >>> NIL especially in this current climate

    I'm afraid you're right. Commits seemed easy to come by early on when visits were prohibited and it wasnt clear if the wealthiest program in the country would be in the bag game or not. Guess the answer to the last part is self evident.

    Agree. It’s going to take at least a couple of years for NIL supremacy to be established. Hopefully, Texas can leverage it by being aggressive in its grey areas. That’ll reduce the importance of traditional bag men.

  2. 2 hours ago, slorch said:

    Have a buddy whose son  is a 5th year Senior at a non-P5 school football program.  He shared that his son signed with Barstool sports. Without dragging out that conversation and being nosy, I have this question:

    WTF does that even look like with regard to money to the athlete and what the athlete does for Barstool?

    Depends entirely on what he’s doing for barstool . Weird to me they are contracting with non FBS players. I’d ask him. I’d be interested to know.

  3. 1 hour ago, SKJ said:

    Quick question. 

    After this NIL stuff, do the colleges now have to pay players for their NIL in programs or other advertising for the programs? 

    If not,  then CAN they?  I mean,  if you wanted to buy a player,  why not just give them a chunk of money for their NIL during recruiting for all the appearances, photos,  and etc used to market the program?

    Schools can’t pay anyone. Nobody can pay recruits. But it does make it easier to insinuate a recruit will get what current players get and there’s a bigger grey area there for boosters regarding current players.

  4. 45 minutes ago, Burt Macklin said:

    Except it’s not irrelevant at all because schools can do it as long as the NCAA doesn’t punish it (which they almost definitely won’t). There’s no enforcement mechanism in the Texas statute if the NCAA doesn’t punish it. 

    So the burden shifts back to UT. Surely, they’ll allow at least the school name, logos, and colors. Will likely require some sort of pre-approval process. thanks for noticing the lack of enforcement mechanism—that is easy to overlook.

    Looks like Tennessee and LSU are allowing some version of IP leniency too

  5. On 7/1/2021 at 8:54 AM, NoName said:

    i guess the question is how many tshirts you have to sell to basically make a few bucks?

    not a TON. will they make it big? no. but is it nice when it come to mailbox money for a college dude who basically just has to play football and tweet links to their branded stuff? absolutely.

    These clothing businesses are taking advantage of these kids, hoping fans will buy the merch no one wants to help the athletes.

  6. 5 hours ago, Burt Macklin said:

    We don’t know that yet. It’s up to the University if they allow it. The Texas law’s only enforcement method is allowing the school or NCAA to punish him/take away his eligibility. So if the NCAA doesn’t outlaw using a school’s mark, then a player can use it as long as the university allows it. 

    This was confusing because most state laws appear to allow it. Unfortunately, Texas NIL statute prevents it unlike other states and schools. The NCAA is irrelevant because Texas law prohibits it. Sucks for all the Texas schools.

  7. 7 hours ago, Barbacoa said:

    I kind of wonder if the NIL stuff has made kids and their handlers more cautious in tipping their hand on their recruitments. Seems to me that you would want as many schools thinking they have a real shot at landing you as possible in order to attract the most NIL opportunities as possible. 

    Probably overthinking it. 

    May be a good strategy to get more followers 

  8. 8 hours ago, TwiceHorn said:

    Well, I should say, in Texas, the statute itself forbids use of institution trademarks.

    Almost all of the laws require that whatever NIL contract entered into must comply with the "team contract."

    It could very well be that team contracts provide that players aren't to make use of institution trademarks, in any circumstances, let alone NIL things.  Of course team contracts can be revised much more easily than statutes.

    Looks like Ohio State, at least, is going to let their players use school facilities and wear Ohio State gear for NIL purposes. I doubt they’ll be alone. This is what I was afraid of because now our statute puts us at a competitive disadvantage.

  9. 10 minutes ago, TwiceHorn said:

    There is a significant question in the law whether a trademark owner can impose "controls" on the use in a passive way, such as simply by specifying in a contract exactly how the mark can be used, or whether they have to actively monitor usage on an ongoing basis.

    There is also a school of thought that the whole notion of "control" in trademark licenses is outdated to the extent it can affect the validity of the licensed mark.  But for now, we're probably stuck with it.

    Someone told me a few teams were allowing it. I never checked because I thought the person was confused and it wasn’t possible but now I’m 50/50 on whether that person was right. Maybe I could check, maybe I could be lazy. Time will tell.

  10. Just now, UtBlaw said:

    That was my other main thought—not many entities exist that would create confusion about the identity of a major university.

    And you just reminded me why I hated IP exams. Because the factual analysis in those close cases tied me up in knots and made my essays completely disorganized because it slowed me down so much I was reduced to just throwing semi-coherent phrases about desperately trying to get points I didn’t deserve. I thought a C was spot on. My other C was federal income tax. The statutes needed hyperlinks an they weren’t contained in my text book.

  11. 1 minute ago, TwiceHorn said:

    The thing people need to understand about trademarks is that they don't grant some unlimited exclusivity in whatever is trademarked, be it a word, or a word/logo, a color, or a sound. They are less "powerful" in that respect than patents and copyrights.

    Infringement of a trademark only occurs the infringing use is likely to cause confusion among consumers of the products/services of the trademark owner.

    So, someone that owns a trademark in a color, say, burnt orange, can only sue or take action against those that use it in a way that creates confusion, that suggests a relationship to the trademark owner.  That's a fairly complex analysis in cases when it isn't obvious as hell.

    That was my other main thought—not many entities exist that would create confusion about the identity of a major university.

  12. 2 minutes ago, TwiceHorn said:

    The argument would be something like this.  Starting with the fundamental premise that a trademark exists only so long as it is capable of distinguishing the origin of goods and services from the origin of other goods and services.

    So, if a trademark owner decides to license or grant permission to use its trademarks, the law says they must exercise control over that use.  This makes a certain amount of sense, because if the owner  does not, it "weakens" the mark by associating it with things not approved by the trademark owner, such as things of lesser quality than the owner's goods, or in different classes or categories of goods, etc.  The ultimate expression of that kind of weakness is "genericness," when a trademark becomes common language to describe a good or service, as in Thermos for vacuum bottles and the other famous examples.

    Short of genericness, at least in theory, unrestrained third party use of trademarks can make them harder to enforce against similar users.  A crude example would be if UT permitted a Longhorn carwash to continue unabated, it would have difficulty stopping other Longhorn carwashes.

    In any event, if a trademark owner licenses trademarks, the law requires that the owner exercise some control over the licensee's use of the mark, otherwise it is a "naked license" or "license in gross" and can result in the complete destruction of trademark rights in the particular trademark (called "abandonment").

     

    So, at least theoretically, UT cannot grant a "blanket" permission for players to use its trademarks in their personal NIL endeavors.  That would be a naked license and jeopardize all of the marks used.

    The alternative would be to monitor how they are used and write dirty letters and even sue when the use gets too "far afield."  That is a burden that the university probably doesn't want to undertake, particularly in this context.

    Finally, there's an underlying notion that NIL efforts are to be done on the strength of the player's NIL and not by association with the university or team.  All of the statutes seem to forbid doing promotions or other NIL activities on "team time" or using "team facilities."  So, forbidding the use of university trademarks kind of fit in with that.

    Thorough refresher, thanks! I was thinking they’d be able to restrict it enough through granting permission before a student athlete uses any IP. So it would place more of the burden on the student and prevent a free for all situation.

  13. 16 minutes ago, slorch said:

    How many shades of burnt orange will need to be trademarked/ protected?

    For who the university or the player? Assuming you mean UT I imagine one would suffice but more would be better. I don’t practice IP law so u only get the most basic answer because it’s almost a philosophical question. What if all colors get trademarked? I’m just assuming another poster is correct about trademarking colors. Can you trademark a musical note? All of them? I.P. can get weird. Everybody always wanting to own everything all the time. Can’t we just share? 

  14. 1 minute ago, Randolph Duke said:

    The university isn’t going to take the chance. It is equally absurd that licensing “Bevo” for a website called “ShaggyBevo” would have been anything other that beneficial as the group wanting to use the name was seeking an opportunity to connect more closely with the product the university is selling in the market.

    IP holders will always allow less free use that the cutting edge between retaining and losing their IP rights. 

    There is no benefit to continuously being in litigation to defend IP when a perfunctory “no” from the start is far less expensive, far less troublesome, and far more efficient. 

    There’s will be a recruit who will be sought after enough for the university to grant trademark use rights in exchange for signing to play sports at UT. 

     

    Your last example would be an illegal contract. I get the shaggy bevo thing. If I were the university I would be compelled to sue in that instance. UT wouldn’t continuously be in litigation. Worse case scenario is filing motions to dismiss. Who would the plaintiffs be? We’re talking about student athletes the school trots out in front of the tv cameras wearing what they can wear in every situation except NIL opportunities. 
     

    Appreciate your viewpoint it is valid and makes legitimate points. It’s just divorced from reality. I don’t wanna waste anymore breath arguing this nonsense because I imagine we could both waste hours of each other’s time.

  15. 6 minutes ago, Randolph Duke said:

    Pantone is for color identification.

    Pantene is for conditioning one’s hair. 

    If the school fails to protect its trademark, it risks losing property rights to that trademark. 

    Thanks for the info Randolph. I let autocorrect come up with Pantene but now I know better, appreciate that.

    I took IP in law school so I realize the risk. It is virtually zero. I’m willing to listen to anyone’s argument about how IP use during a NIL “job” will threaten UTs IP but I can’t promise I won’t giggle the entire time.  

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  16. 8 minutes ago, TwiceHorn said:

    That's probably accurate.  

    However, burnt orange and/or white, used in combination with a known or well-known UT athlete, is getting close to the sort of "university sponsorship" and related concepts that I think UT wants to avoid.

    And, as Burt and I have discussed, this provision of the Texas law seems to be somewhat unique.  I haven't seen it in other NIL laws that I have skimmed.  And it may place us at a disadvantage relative to other schools willing to "lend" their trademarks.

    Yess!! I haven’t found anyone else that noticed this. It fucks us on several levels. I vaguely alluded to it but this is insane. I think there’s a better argument for letting the kids wear their IP. They won’t even let them autograph pictures of the campus. We’ll at least align with the ags on one thing—an amendment to our damned NIL statute. Hell, just repeal it—we’d be better off.

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