Oiselle Reprimanded by USATF

Lawless yip yap from USATF wrote:

Incorrect.

Volunteer amateur snapshots issued by the meet director are not advertisements. Millions of people muck up selfies and re-post them on instagram. Oiselle has done nothing wrong.

This is clearly not correct - an instagram feed from a company is an advertisement. The purpose of a company's instagram feed is to manage its brand and create greater product awareness. Clearly gaining commercial value from placing its logos on a USA jersey and associating their brand with team USA (though, as mentioned before, the damages aren't very high).

This is not the same thing as if I were posting photoshopped pictures on instagram - I'm not using the pictures to further a commercial brand.

The Nike deal for national uniforms started in 1991.

DaveW wrote:

I guess it will be open in a few decades. Where was everyone in the last few decades?

That was what the open market was all about. Sorry you weren't there to see it.

The letter asked to pull down the photos, or else, and the photos were pulled down. Do you think there will be further repercussions?

othergal wrote:

Right. Just watch how this unfolds...

Oh lighten up rojo! It was kind of a joke, no doubt to generate some controversy.

rojo wrote:

Kanye North wrote:

You're overthinking this - USATF is protecting USATF's rights, not Nike's. USATF has a right to license a company to advertise on US jerseys (and granted that license exclusively to Nike); Oiselle infringed on USATF's rights. If USATF had chosen not to license its jerseys to any company (i.e., if there were no company logos on the front), they could still send a cease and desist logo to a commercial company photoshopping a logo onto the jerseys.

Both Nike and USATF were damaged here.

^^^^^

Bingo. It amazes me that people think USATF and/or Nike don't both have the right to stop Oiselle from doing what they did.

Think about it simply. USATF's main source of revenue is their sponsorhip with Nike. Most of the money in track all in some way, shape or form results from the fact that track and field is a HUGE deal at the Olympics. Nike pays a sizeable sum of money each year to USATF mainly for the purpose of insuring that their logo shows up in every photo of every USA track and field athlete at the Olympics/Worlds.

Oiselle doesen't pay anything. They can't put their logos on the team USA uniforms.

Think about it in terms of soccer. Take Manchester United. On their jersey, both AON (insurance) and Nike pay tens of millions to have their logo on the jersey.

Some other company can't doctor the Manchester united jersey so their logos show up in the photos. Do you think there wouldn't be a lawsuit if state farm insurance and adidas put their logos in the photos.

And its' simlar to track in the sense that individual manchester united athletes can have shoe deals with their own companies. But when they compete for Manchester United, they must wear the Manchester United jersey. WHen you compete for Team USA, you must wear USATF's jersey.

Obviously the difference is the soccer teams pay the players a salary but that's not really relevant. UI always wondered what would happen if all of the athletes just refused to compete in USATF's uniforms. If it was a game of chicken, who would win.

So clearly from a legal standpoing what Oiselle did was illegal. No doubt about.

The reason why there is outrage is USATF acts quickly and effectively in this case. When it comes to 'controversies' like the Bumbalough DQ or doping coaches, it's like pulling teeth to get a response from them.[/quote]

800 dude wrote:

Avocado's Number wrote:

Would you be willing to put all of this in a legal opinion letter for Oiselle's CEO, perhaps to assist her in deciding whether to engage in further willful violations of (among other things) the Lanham Act? I sure wouldn't.

Of course not. But I'd certainly give my client an honest assessment of the law and the likely consequences of violating it.

But this is what you wrote:

"In fact, Oiselle probably broke the law on purpose to goad Nike into bullying them. Oiselle knows they don't have much liability exposure, and it makes Nike look bad. Smart move.

...

Their liability exposure is tiny. Nike would be entitled only to the profits that Oiselle earned from their infringement."

And that's just wrong, as a matter of law.

A more useful alternative might be to suggest to your client that there are ways in which the same intended information could be communicated, possibly even using the same or a similar doctored photograph, that would provide better First Amendment protection against a finding of liability, and then consider the consequences if the First Amendment defense fails and the client loses on liability. But telling the client that it can "break the law on purpose" with "tiny" liability exposure limited to disgorgement of profits earned from infringement would be both wrong and, in my view, terribly unwise, exposing the client to liabilities and costs that greatly exceed disgorgement.

It's worth pointing out that Oiselle requires their "flock" to remove any old pictures from their social media that show competing brands. I guess they were following their own stupid rules.

Avocado's Number wrote:

And that's just wrong, as a matter of law.

A more useful alternative might be to suggest to your client that there are ways in which the same intended information could be communicated, possibly even using the same or a similar doctored photograph, that would provide better First Amendment protection against a finding of liability, and then consider the consequences if the First Amendment defense fails and the client loses on liability. But telling the client that it can "break the law on purpose" with "tiny" liability exposure limited to disgorgement of profits earned from infringement would be both wrong and, in my view, terribly unwise, exposing the client to liabilities and costs that greatly exceed disgorgement.

Are you talking about attorneys fees and treble damages? Technically available, but rare in practice. In either case, the exposure is still small, as there are no punitives under Lanham. Or are you talking about some other cause of action?

Look, I understand that there are ethical problems here, but you don't honestly think that Oiselle is at any REAL risk of liability, do you?

In any event, if Oiselle intended to break the law or to get close to breaking the law, then the point wasn't to get information across, which as you point out, they could have done other ways. The point would have been to provoke Nike. Nike probably understands this, which would explain why USATF responded, essentially on their behalf. Protecting trademarks against smaller competitors in the age of social media carries negative reputational risks, which is why Nike would act through an intermediary.

I'm not saying this is how I would do business, but I do think that Oiselle was being "smart," in the sense that they weighed risks and rewards and probably are going to get the result they wanted. I don't think this was a case of an unsophisticated upstart that just didn't know the rules.

One could make a case that Oiselle created a business plan based on disparaging Nike with the intent to promote their own brand. I must say, I never understood the growling women part since young women runners today seem to be progressing fine without the growl.

Weldon, you seem to support the idea that everything is OK since Oiselle got free publicity. I can only infer that you use this philosophy in your own business plan.

Calling into question the basic integrity of a company and all of the runners that a company supports is not something to be taken lightly. And I think you are very wrong to think that this won’t have consequences.

I guess other sponsors didn't react since 1991? Do you mean Nike was the only one in the market back in those dark days?

Was there a new deal recently? I think this was about the fact that nobody else stepped up. Sorry that you didn't see it.

I just saw it. Lollololol....lollipop

Maybe it is because Nike's marketing department isn't populated by childish fools.

Oiselle was wrong and there isn't any grey area or nuance to it. Instagram is a real of an advertising platform as TV or the official company website.

If I, as Oiselle's legal counsel, had explained the law and risks to my client as you did earlier in this thread, and my client had then proceeded to act as Oiselle did in this case, I would be scared stiff right now, because I would probably have committed malpractice. I would probably have to notify my liability insurance carrier that there are potential claims against my firm, and if either USATF or Nike chose to sue my client, the costs and liabilities of that litigation could (depending upon Oiselle's financial situation) push my client into insolvency, in which case my firm and I could become liable for, among other things, whatever market value might be assigned to Oiselle if none of this had happened. I'm sure that various colleagues would try to comfort me by insisting that it's very unlikely that either USATF or Nike would choose to file suit, but I guarantee you that I would be worried sick today.

The Lanham Act provides for a wider range of monetary remedies than you have recognized; the district court has significant discretion in fashioning remedies, and might choose to exercise such discretion where the violation was plainly willful and the motivation for the violation was (as you apparently believe) nothing more than pure provocation of a competitor. Perhaps more importantly, even if the monetary remedies were very limited, the near certainty of a finding of liability could force the case to trial after extensive pretrial proceedings (since there would be little hope of a successful dispositive pretrial motion in defendant's favor), with litigation costs that could sink a weakly capitalized company.

Furthermore, as the cease-and-desist letter notes, claims here would not be limited to the Lanham Act. State statutory and common-law claims would also be available, and some of those statutes provide for statutory (in addition to or in lieu of actual) damages, penalties, and attorney fees. I'm pretty sure that some of those statutes also provide for punitive damages, which would presumably be available under the common law in any event.

Assuming that Oiselle doesn't engage in further shenanigans, I very much doubt that either Nike or USATF will pursue litigation for this single act. But if Oiselle doesn't start acting like a grown-up, it may get swatted at some point, like an annoying little housefly.

By the way, although I haven't seen the doctored photo, Oiselle's CEO says that the Nike swoosh was replaced by the logos for Asics, Brooks, Oiselle, and New Balance -- "the sponsors that the athletes actually run for." Do you think that any of those other three companies would do something like this, using this same doctored photo? I don't, and it's not because Oiselle is edgier or more courageous or some such thing. It's because those companies recognize that this is serious business for grown-ups, and grown-ups are expected to follow the law or risk serious adverse consequences.

Finally, I would not assume, as you have, that any willful infringement here was merely for purposes of provocation and consequent publicity. As an earlier poster noted, Oiselle's CEO has previously criticized the USATF-Nike deal, intelligently and cogently. I suspect that this photo had something to do with frustration associated with that deal. But without the clear context of an intelligent discussion of those concerns, Oiselle's publication of such a photo is, in my view, a silly act that poses easily avoidable and unnecessary risks.

I want to add that I have no reason to believe that you would actually misstate the law or risks to your client if you were asked for your opinion.

I can honestly say I was more moved by a few women's races over the years than most men's races. It was all about the character of these women and the relative environment in which they competed.

But I don't support the sorority mentality that Oiselle seems to foster. I was raised in an environment where women were considered equal in any field when they were fairly measured.

1992 Olympic Basketball medal ceremony

rekrunner wrote:

The letter asked to pull down the photos, or else, and the photos were pulled down. Do you think there will be further repercussions?

othergal wrote:

Right. Just watch how this unfolds...

Yes, the repercussions against Oiselle could go further, in the sense that USATF/Nike could decide to take action and sue to make sure that this will never happen again. Like I said earlier, (and like Avocado's Number is saying above) according to the contract between USATF and Nike, everything is lined up for them to take the proper legal action if they so choose.

Once USATF makes a public statement using words, pictures, videos, it's public domain and is treated as news material which can be freely modified and photoshopped per freedom of speech. Examples are race results which can be edited for onlt the top 3 spots, or throws removed. Another example are nude bike rider videos can fuzz pubic areas and breasts. A runner crapping in his pants can be buzzed out. Etc.

"Avocado's Number", sensible as usual. Wish you offered more thoughts here about T&F (though I understand completely why you don't).

The cat is out of the bag. I photoshopped out the swoosh out of my tweets today.