USA Law and Practice Contributed by: Irwin A. Kishner, Daniel A. Etna, Joel Wagman and Barry Werbin, Herrick, Feinstein LLP
Lanham Act, which also provides remedies for com - mon law trade mark infringement (often referred to as unfair competition) and false advertising. Typically, court cases alleging violations of the federal Lanham Act include additional state law claims for unfair com - petition, passing off and similar state law remedies. 5.5 Licensing Licensing is a primary generator of team and league revenues and extends to a large variety of merchan - dise, TV and streaming rights, film and video rights, and the hospitality sector. In the USA, the professional major sports leagues generally control and administer all member team trade mark rights and the licensing thereof (see 3.1 Proprietary Rights ). Licensing rev - enues are shared with teams based on contractual formulas. The leagues also enforce team trade marks against infringers and counterfeit products. Professional athletes are generally free to enter into direct sponsorship and licensing agreements, typically through their agents, provided such acts do not oth - erwise violate their team and league policies and any player contract provisions. 5.6 Assignment of IP Rights There are no legal restrictions on assigning IP rights to third parties, with the only statutory exception being that an “intent to use” federal trade mark application can only be assigned to a successor of the underlying business. Restrictions on the assignment of IP rights to third parties are generally a matter of contract. In the absence of any such restriction, contractual rights may generally be assigned except for personal service contracts; however, this is a matter of state law and is therefore subject to specific applicable laws of the 50 states. 5.7 Data in Sport Sports in the USA are heavily reliant on massive amounts of data and statistics regarding players’ per - formance and health, training, coaching, competitive team positions, scouting reports and fan engagement. Major sports leagues and their teams employ sophis - ticated technology to capture real-time game data, such as MLB’s StatCast system, an artificial intelli - gence (AI) tool that uses radar and high-speed cam -
eras to record all movements made by players and tracks the flight and velocity of baseballs. Similar systems are installed in NFL and NBA arenas and are being implemented by the National Hockey League (NHL). The NBA uses cameras to track play - ers’ co-ordinates on basketball courts multiple times per second, and AI algorithms process that data in real time to disclose defensive weaknesses or player spacing inefficiencies. The NFL, in collaboration with Amazon Web Services, has created the Digital Athlete, an AI tool that creates a virtual representation of an NFL player, using TV footage and sensors in football gear, to enhance player safety and better predict and prevent player injuries. Formula 1 racing is at the lead - ing edge of data capture technology, with each car being outfitted with up to 300 sensors that produce approximately 1.1 million data points per second, and with data processing systems that are driven by AI technology. Data science is also used extensively to predict, minimise and prevent athletes’ injuries (see also 5.2 Copyright/Database Rights ). 5.8 Data Protection The EU General Data Protection Regulation (GDPR) does not apply to US leagues and teams that are not collecting any personal data from EU residents. Leagues, teams and promoters will be subject to the GDPR with respect to international competitions and exhibition games outside the USA. There is no US federal data privacy law outside of the health care and financial sectors, and for children under 13 years of age. California has the most exten - sive set of data privacy laws that apply when per - sonal data (as defined under state law) of California residents are collected, used, stored or processed. Multiple other states also have data privacy laws, and more are being enacted year after year that apply to residents of those states. Teams that collect data from fans and followers, which can include minors, must strictly comply with these multiple state data privacy laws. Modern stadiums and other sports venues may also collect biometric data that is subject to state pri - vacy laws.
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