Technology Law Source

What college student-athletes should be thinking about now before NCAA name, image and likeness rules are released

On October 29, 2019, the NCAA Board of Governors unanimously decided to allow college student-athletes the opportunity to profit for the use of their name, image and likeness. The Board directed the NCAA’s three divisions to consider updates to their rules and regulations to effectuate such a decision. The NCAA announced the decision on the heels of the California Fair Pay to Play Act, which will allow college student-athletes in the State of California to hire agents and be paid for endorsements. While this California law will take effect in 2023, it, along with consideration of similar laws by other states, put pressure on the NCAA to determine an association-wide solution.

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Consumer privacy protection in recent state legislation

Special thanks to Emily Cunningham, Porter Wright law clerk, for her assistance on this article.

Since California passed the California Consumer Privacy Act (CCPA), many states have introduced similar consumer data privacy legislation, but so far only Maine and Nevada have passed legislation successfully. Nevada focuses on internet website operators, whereas Maine focuses on broadband internet access service providers. Both laws are generally narrower than CCPA, although Maine’s law has an opt-in only provision. Continue Reading

Status of CBD products under Ohio law: Update

In our recent post, Status of CBD products under Ohio law: Part one, we discussed the perplexing regulations in Ohio that made it effectively illegal to sell hemp and Cannabidiol (CBD) despite passage of the Agriculture Improvement Act of 2018, otherwise known as the 2018 Farm Bill. That landscape has now changed in Ohio with the passage of Senate Bill 57, signed into law by Governor DeWine on July 30, 2019.

The version of Senate Bill 57 that Governor DeWine signed into law has special emergency provisions making the legislation effective immediately upon signing the bill. This post will examine what Senate Bill 57 does to change Ohio’s legal landscape for hemp and CBD and provides an overview of what Ohioans can expect as the hemp program takes shape in Ohio. Continue Reading

Kawhi Leonard v. Nike, Inc.: Copy, derivative work or distinct work?

On July 17, 2019, Nike, Inc. (Nike) filed its Answer and Counter Claims in response to the complaint previously filed by Kawhi Leonard, now of the Los Angeles Clippers. Read about the complaint in our previous post, Kawhi Leonard v. Nike Inc.: How copyrights can trump trademarks?

In its Answer, Nike asks for a declaration that Nike is the sole owner of copyrights in the modified “KL2” logo, a finding that Kawhi’s use of the modified “KL2” logo infringes the copyrights owned by Nike, cancellation of Kawhi’s copyright registration to the modified “KL2” logo due to fraud in his copyright application, and a finding that Kawhi breached the “Men’s Pro Basketball Contract” he entered into with Nike on October 26, 2011. Continue Reading

The GDPR: A year in review

On May 25, 2018, the General Data Protection Regulation (GDPR) became effective across the European Union. The GDPR is a regulation designed to give EU residents control over their personal data and simplify the regulatory framework for international organizations doing business in the EU. In its infancy, it was not entirely clear how the GDPR would be enforced. Now, one year later, the regulation is beginning to show some teeth.

For individual consumers, the GDPR likely calls to mind last year’s flurry of privacy policy email updates from companies scrambling to comply, or perhaps the constant stream of consent pop-ups and cookie banners Europeans navigate on a daily basis when browsing the web. For U.S. companies that do business abroad, however, the GDPR represents a constant struggle to refine their data protection policies, as strict compliance remains an elusive target.

Although many data privacy lawyers disagree on whether strict compliance with the GDPR is even possible, recent enforcement measures have shed some light on how the regulation may be enforced in the future. A review of last year’s enforcement actions should help companies avoid unnecessary penalties and inform them what to expect going forward. Continue Reading

Kawhi Leonard v. Nike Inc.: How copyrights can trump trademarks?

On Monday, May 3, 2019, in the midst of the NBA finals, Kawhi Leonard of the Toronto Raptors filed a lawsuit against Nike, Inc. (Nike) in the US District Court Southern District of California. The complaint asks the Court for a declaration that Kawhi is the sole author of the “KL2” logo, that his use of that logo does not infringe the rights of Nike, and that Nike committed fraud in its copyright application. The “KL2” logo is sometimes referred to as the “Klaw” logo which is a nickname for Kawhi. Kawhi owns US trademark registration number 5608427 for the “KL2” logo for use with apparel. However, Nike owns US copyright registration number VA0002097900 for the “KL2” logo.

Kawhi KL2 logo

Trademark Reg. No. 5608427

See our update in part two, Kawhi Leonard v. Nike, Inc.: Copy, derivative work or distinct work?. Continue Reading

China’s draft measure on cross-border personal information transfer

On June 13, 2019, the Cyberspace Administration of China (CMA, 国家互联网信息办公室), an office that serves as China’s central internet regulator and censor, released the draft Measures for Security Assessment of Cross-border Transfer of Personal Information (the Measure, 个人信息出境安全评估办法) for public comment.

Following is a brief analysis on how this Measure, if adopted, could affect U.S. entities doing business in China or doing business with Chinese entities.  Continue Reading

Status of CBD products under Ohio law; Emerging issues in intellectual property related to cannabis business: Part 2

In Part 2, we cover the key Intellectual Property issues that are emerging in this arena. Read part 1 here.

United States Patent and Trademark Office update

Following the enactment of the Farm Bill, the United States Patent and Trademark Office (USPTO) has officially issued guidelines when reviewing trademark applications for CBS and hemp-derived goods and services.

This is a big step for the cannabis industry as for many years, entities have tried, unsuccessfully, to legally protect their trademarks in connection with commercial cannabis businesses. The USPTO policy for many decades has been rigid in its dealing with cannabis related trademarks; the tolerance level being essentially none. Continue Reading

Status of CBD products under Ohio law; Emerging issues in intellectual property related to cannabis business: Part 1

Two emerging issues related to commercial cannabis are taking center stage for industry stake holders in Ohio:

  1. Current legal status of hemp and cannabidiol (CBD) based products under state law
  2. How intellectual property rights will be protected

We will walk through both the background and current status related to these issues in this two part series.

Background: Hemp and CBD legal status in Ohio

Until recently, federal law did not differentiate hemp from marijuana meaning both were considered “marihuana” (the law dates back decades and uses an older spelling of the word marijuana) and outlawed as a Schedule I Controlled Substance. Late last year, Congress passed the Agriculture Improvement Act of 2018, otherwise known as the “Farm Bill”. The Farm Bill removed hemp from the definition of “marihuana,” effectively removing it from the Controlled Substances Act and paving the way for legalized hemp cultivation and sale. Continue Reading

A “Boost” for copyright protection in the fashion industry: Kanye’s Yeezy sneakers to receive copyright registrations

On May 8, 2019, the Review Board of the U. S. Copyright Office issued a decision stating that Yeezy 350 Boost Version 1 and Yeezy 350 Boost Version 2 sneakers each include copyrightable subject matter. The Adidas Yeezy sneakers are a collaboration between Adidas AG and Kanye West which has been wildly popular and as a result has been frequently knocked off by imitators. So it is not surprising that Adidas AG pursued copyright protection for these sneakers. This decision by the U.S. Copyright Office clarifies that footwear designs can be perceived as two- or three-dimensional works of art separate from the footwear themselves. Thus, footwear designers clearly have the option of copyright protection for footwear designs having sufficient originality.

Yeezy 350 Boost Version 1 (left), Yeezy 350 Boost Version 2 (right)

In 2017, Adidas AG filed applications for copyright registration of the Yeezy Boost 350 Version 1 and the Yeezy Boost 350 Version 2 which are shown above in photos from the decision. The U.S. Copyright Office initially rejected these applications because the sneakers were said to be “useful articles that do not contain any copyrightable authorship needed to sustain a claim to copyright.” Note that copyright law does not protect useful articles, such as clothing and footwear. See 17 U.S.C. § 101.

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