USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
4.3 Sport Funding Federal agencies and state and local governments often turn to public-private partnerships to structure and execute the development of stadiums and other sports-related facilities. This is often done in conjunc - tion with the redevelopment of real estate located in areas qualifying for tax status as a Qualified Oppor - tunity Business Zone with special tax-advantaged attributes. Federal legislation in 2025 extended and enhanced tax incentives for investments in qualified opportunity zones creating opportunities for the sports and enter - tainment industries, where projects often require large tracts of land and involve significant public-private partnerships. 5. Intellectual Property, Data and Data Protection 5.1 Trade Marks Trade mark rights in the USA are based on the use of a mark in US commerce for specific goods/services. Registration is therefore not necessary to protect and enforce trade mark rights, although registration pro - vides certain meaningful benefits (discussed in the following) and enhanced litigation remedies. Unreg - istered but otherwise protectable marks (ie, common law use) may be enforced against junior users of the same or confusingly similar marks for the same or closely related goods/services; however, a junior user who registers its mark first may, over time, establish priority in geographic regions in which the senior use had not been operating at the time of such junior user’s registration. Registration is available at the federal level through the US Patent & Trademark Office (USPTO) for marks that are used in US interstate commerce. “Intent to use” applications can be filed without use to obtain early priority filing dates, but even if such applications are approved, registration cannot be obtained until evidence of use has been filed with the USPTO within statutory time periods. All 50 states also have state trade mark registrations for marks that are used locally only within their states. Word marks that are generic can never be registered.
Marks that are merely descriptive also cannot be registered on the Principal Register or enforced until, and if, they obtain secondary meaning (also known as “acquired distinctiveness”). Marks cannot be reg - istered if they are confusingly similar to any prior filed application or issued registration for related goods/ services. While registration is not necessary to enforce valid trade mark rights, under the US Trademark Act (also known as the Lanham Act), the advantages of federal registration include: • legal presumption of validity of the mark and its ownership; • constructive nationwide notice of registration; • potential for enhanced damages in infringement cases, especially for counterfeit merchandise; and • potential senior rights in certain geographic areas as against a senior common law user of the same or confusingly similar unregistered mark in the absence of prior knowledge of the senior user’s use. 5.2 Copyright/Database Rights US copyright law is exclusively governed by the 1976 Copyright Act, which is a complex statute with addi - tional enabling regulations. The USA is a member of the Berne Convention, which has been in force in the USA since 1 March 1989. Registration is not required to protect copyright, which exists from the moment of creation of an original work of authorship that is otherwise protectable by copyright. While copyright protection extends to a very broad category of origi - nal works, some features like common geographic designs and short phrases are generally not protect - able. Similarly, under current US law, content created by generative AI is not protectable because copyright only protects works of human authorship. However, except for non-US Berne Convention works, registration is still required as a prerequisite to sue for copyright infringement in the USA. In addition, if a reg - istration is issued within three months of a work’s first publication, in a subsequent infringement action the copyright owner may seek both statutory damages (in lieu of a need to prove actual damages or an infring - er’s profits) and legal fees if successful. Although non-
380 CHAMBERS.COM
Powered by FlippingBook