Trademarks and Sports Supplements - Essay Example

Name Professor Course Date Trademarks and sports supplements Question What are the legal conditions and regulations that govern the use and distribution of sports supplements and their trademarks? Introduction When it comes to sports nutrition, the industry is on a constant move to improve on their innovations. This is because of the growing awareness and adoption of sports supplements to not only athletes and body builders but the public, as well. Therefore, it is essential that there be applicable laws and regulations that can protect individuals on these emerging innovations. These laws are to ensure that there is no violation of human and products are safe to human health and environmentally friendly. The companies that come up with these innovative sports supplements also need to protect their intellectual property. On the other hand, while being cautious that they also do not infringe the intellectual property of other competing companies. These intellectual property rights include sighing and conforming to patents, trademarks, and copyrights. These companies additionally have to keep track of the changes that take place in legislation and change of rules in the sports nutrition industry. They also need to adhere to worldwide rules. To avoid violation of legal restrictions on sports supplements in various countries that are strict on the various ingredients that may be in use. Stretching back into history, the 1970’s and 1980’s are believed to be the introductory period of the sports supplement industry. This was heightened by the mainstream recreational and growing desire for bodybuilding. The advancement and use of modern marketing practices also had a hand in this trend1. In October of 1994, The United States of America, introduced and signed into law the Dietary Supplement Health and Education Act DSHEA2 ( WA) s 126(3). DSHEA guides and controls the manufacturer of supplements and ensures that the manufacturers are responsible for the quality and safety of their products to consumers. In this case, when a company introduces a new dietary ingredient, there is no need of consulting with the Food and Drug Administration (FDA) on issues of effectiveness and quality3 2005 104 (CLR) 213. It is from this Act that there has been tremendous growth and development of the sports supplements and establishment of numerous trademarks in this field. This essay tries to bring out into detail some of the issues and laws governing the sports supplements and trademarks. Legal conditions of Trademarks Trademarks are generally forms of intellectual property. Trademark law, therefore serves to govern the usage of service marks (similar to trademark but applicable to services) and trademarks4 2012 (CLR) 213. The law grants exclusive rights to the owners of the mark to use it on their products and services to which they have lawfully registered. The law gives the right to the owner to restrict others from using the same trademark without their permission. The law also governs against those providing similar or identical products from using the trademark of others; this is known as trademark infringement5 2012 (CLR) 213. The infringement comes in when there is the use of a trademark by another party, which did not register under the trademark uses it or adopts a confusingly similar trademark to similar products. To prove if there is alleged infringement the owner of the mark must come up with evidence. This evidence proves that the use of the mark or similar mark creates confusion on the origin of the perpetrator’s products. This confusion either shows that infringer’s products are similar to those of the owner of to the trademark or the infringer is an associate, sponsor, or affiliate of the owner. This confusion element has clear explanations under both the state case and federal law to which both govern the trademarks. In earlier times, the state common law was the source of protection to the trademarks, but after some time, the federal trademark law is now resuming the duty of state common law by providing protection for all trademarks. There is one federal statute that deals with Trademarks and it is the Trademark Act of 1946 through amendment (Lanham Act)6. The existing law much of it codifies in relation to this common law. There is a patent and trademark office (PTO) in the US that administers and regulates all the laws that relate to patents and trademarks. There are two methods or ways to gain rights to a trademark. A company, firm, or individual can either go to the PTO offices or register with them the trademark name under the company, firm, or individual name. The second method is by the firm, company, or individual to be the first to use the mark in commercial transactions. From this practice, the state provides protection for that specific trademark through common law or at the state level under statute. However, it is advisable that one should register the trademark as this gives evidence on ownership comparing with just using without registering. The ® symbol is an official indicator of a mark that is registered by PTO, the unregistered trademark on the other side is marked by “tm” while the service marks are “sm”7. The trademark is a right that can be lost just like any other right. In this case, improper licensing, abandonment, improper generation of ideas, and improper assignment of the trademarks leads to the owner losing the trademark rights. Cancellation of a trademark can also happen in the situation that licensing of the trademark is without the appropriate supervision and quality control of the trademark owner. PTO will cancel the rights to a trademark if it is assigned to another party, yet there is no correspondence to sale of assets. Generic transformation of a trademark into a different, distinct mark over time is what is referred to as generecity and consequently leads to a trademark losing its protection. The need for regular maintenance of Trademarks rights is particularly important; this can be through lawful use of the mark over varying periods or else the owner could lose the rights to the trademark. Sometimes ‘non-use’ of the trademark by the owner over long periods or failure to take action in the event that there is infringement may lead to loss of the trademark rights8 2011 (WA)  cl 6. Case laws relating to trademark The nature of trademarks sometimes may become serious when a certain company or firm infringes or violates the trademark of another. One famous case relating to trademark involves the Bauer Bros. LLC v. Nike, Inc9 2011 124 (CLR) 219. This case involves around a slogan “Don’t Tread on Mean that originates from the 1700’s. In this case, Bauer Brothers LLC is a company that creates and sells cloths with the phrase “Don’t Tread on Me”. The company accuses NIKE of infringing the trademark rights, as it is believed to be the first to adopt the slogan as their trademark. In this case, Nike has continually defended their stand pushing the argument back to the 1970 is when the term was used to mean revolution instead of the current trademark. According to the Lanham Act, trademark law protects against packaging, physical appearance and to some extent includes the smell of the product. This is in law the trade dress of a product, and it is liable for protection under the law. This fact seems to express itself in a case from the US Supreme Court that was between Wal-Mart Stores, Inc. v. Samara Brothers, Inc.10 2012 (WA) cl 48. In this case, Samara Brothers Inc. was a company dealing in the designing manufacturing of children’s clothes. Wal-Mart Stores, Inc., on the other hand who is retailers got into a deal with another company that was one of their suppliers. The supplier Judy-Philippine Inc. was to manufacture children clothing similar to that of Samara Brothers. From this course of action, there was an infringement to Samara’s clothing trademark, which led to Samara taking legal action in the District Court of Southern New York against Wal-Mart Inc. for this infringement. The court’s decision favored Samara Brothers, dismissing Wal-Marts motion characterizing it with insufficient evidence. Sports supplements The one thing that runs in every athlete or fitness buff’s mind is how to improve their sporting performance. Majority of people wonder on whether their inclusion of sports supplements to their diet will offer effective and fast results in toning the body and competitive advantage without hard work. The first question, however, one should answer is how well do they understand this supplements. Sports supplements in another term ergogenic acids are generally the products that athletes use to increase their performance11. These products may include amino acids, minerals, herbs, vitamins or in some cases botanical plants. The combination of these substances in any way is also part of the adopting to sports supplements. These products are normally available over the counter either from specific shops dealing with such or from ordinary chemists providing this provision of products12. The products do not need prescription, but it is highly advisable to seek nutritional guidance, whenever purchasing this product to ensure there are no incidents of wrong usage. Sports performance is highly dependent on nutrition. This is what brings in the issue of supplements. However, there is the need to understand that the usefulness of any nutritional or sports supplement needs to be critically understood. Various factors play a role in some nutritional supplements it is, therefore noteworthy that proper caution be taken while using them. Some of the factors to consider including the training exercise itself whether heavy or mild, sex, and any other nutritional status of the participants13 2008  (WA) reg 41(7). Before including a supplement to be safe to use in any training or competition diet there are a few tastes that one should take into account first. These tests include mechanism of action, legality and safety of the supplement, fatigue, together with scientific from a study to prove that the supplement are safe. Intra-workout supplements These are a result of current innovations in the sports supplements and come in the form of nutritional supplements that individuals use while training, in most cases they come as an intra-workout drink14. They are commonly made of essential amino acids, branched chain amino acids, or short chain peptides that come from hydrolyzed whey protein. They are best during training as there is rapid absorption owing to the fact that the body requires more of essential amino acids especially BCAA’s during workout. In addition, most of the intra-workout supplements tend to have nutrients such as citrulline malate (a nitric oxide precursor best for aerobic activity), beta alanine (improves muscle endurance) or nootrpic complexes that enhance a person’s mood15. Pre-Workout supplements They are those supplements that enhance aerobic and anaerobic power, enhance recovery, encourage muscular endurance, and heighten the mental stimulation of a person16 2010 (WA)  cl 4. They originate from the past where athletes would take some caffeine tablets or a cup of black coffee, which gives them a boost in their workout. However, due to the advancement in technology and sports nutrition, supplements now combine a wide variety of ergogenic aids in a single product are now common. These supplements mostly comprise of stimulants, for example caffeine and tyrosine. Others include amino acids, nitric oxide precursors, and ergogenic (nutrients that include beta alanine, creatine and citrulline). These supplements are best for body builders, however; caution should be taken for those participating in drug testing sports and should find out first which drugs are prohibited. Additionally they need to ensure they are aware of the composition of their supplements. Composition of Sports supplements and how they work Some of the well sports supplements include the carbohydrate –electrolyte solution (CES), Medium-chain triacyglycerols (MCTs), and the Branched-chain amino acids17. To ensure the effectiveness of ingesting nutritional supplements, it is necessary to do it during endurance exercise or immediately before an endurance exercise. Supplements such as the CES (carbohydrate-electrolyte solutions) have proven to increase the performance as well as the capacity. To back up this theory research work explains that these supplements are effective in that they maintain the euglycaemia during the entire exercise and help in sparing the muscle glycogen. Addition of caffeine to this supplement ensures endurance performance, which is brought in by the consequence of reduction in effort perception. According to various research findings the adding of protein into CES can only be effective when there is moderation of the carbohydrate ingestion during the physical exercise (< 60g of CHO.h (-1))18. The theory also suggests that recovery of performance is likely to be an enhancement resulting from the reduction in muscle soreness, and there is a lot of protein synthesis. Legal conditions and Regulations governing sports supplements Sports supplements are put in the category of dietary supplements they, therefore do not have to get the approval of the United States Food and Drug Administrator (FDA) before going to the market19 2004 (WA) reg 41(7). The manufacturers of these supplements however have to take into effect the FDA’s regulations on manufacturing practices that result into safety and quality of the products. For those who do not conform to these practices, FDA is responsible for taking action on them in case their products do not meet certain standards and they are already on the market. For different sporting events, there are laws that govern as which supplements the players or athletes can use and which ones are forbidden. Many sporting organizations have their own policies on sports supplements. Organizations such as International Olympic Committee (IOC),the National Collegiate Athletic Association (NCAA) and the National Footbal League have banned the use of ephedra, androstenedione and steroids20. Those athletes found violating these regulations are subject to stiff measures such as fines, suspension, and ineligibility. When it comes to students, it is highly recommended that any student wishing to take sports supplements needs to consult a doctor. For athletes, there is the World Anti-Doping Agency, which is responsible for fighting and monitors the use of drugs in sports. Set up in November 1999 it was a result of promoting, monitoring, coordinating, and fighting off drugs in sports. The agency is responsible for World Ant-Doping Code to which more than 600 sports organizations have adopted. It receives funding from International Olympic Committee (IOC) and other contributing governments around the world21. WADA has a governing body to which its members are from various governments across the globe and sporting movements including athletes runs the agency. The agency’s primary objective is the development of anti- doping capacities, scientific research, monitoring of the World Anti-Doping Code, finally educating, and harmonizing regulations that govern anti- doping each sport and each country. Challenges facing sports supplements There are critics in the market that are convinced FDA is not doing a proper job in enforcing regulations. Some of these critics claim that some supplements contain ingredients that are not indicated on the packaging of which they can be terribly harmful to the user. Since the supplements are an over, the counter prescriptions some people have come to confuse them with other harmful products that can easily be bought over the counter. For example, there are over the counter prescription drugs and medications that include the anabolic steroids that are not supplements but serve the same purpose22. However, these drugs despite being proven safe by the FDA, when used for any other purpose they are not intended for may bring harm to the user. Relationship between trademarks and Sports Supplements As described earlier the trademark identifies a product to its user, and it is a product’s identity that will make its market grow or fail. There are hundreds of sports supplements across the world and each company are fighting to identify its brand to the larger market share. For these firms to be successful in achieving this they need to let their customers identify their trademarks and spread the word. Besides the trademark creating a unique identification for a product in the market, the sports supplement manufacturers get protection from other companies who can steal their ideas. The trademark is also hugely beneficial when launching the supplements this sis because the use of a wrong symbol or word in the trademark could mean poor market response or stiff competition. Sports supplements also tend to have issues with their trademarks. This is because most of them tend to include “Dr.” or a variation of “Nature” and “Natural”. In a post by Grubner, (2010) she talks of the over 200 active registrations of supplement trademarks that are pending due to use of ‘Dr’ and over 400 others that have variations of ‘Nature’ and ‘Natural’23 2004 (WA) reg 41(7). In this article, she also discusses a case that is in the federal district court over trademark infringement of two supplement-producing entities. The case Alaven Consumer Healthcare, Inc. v. DrFloras, LLC,24 is about the two firms both using similar trademarks “DrNatura” and “DrFloras” (par. 1). Alaven ‘DrNatura is suing Dr Floras for trademark infringement. The state appeals court for the 11th round concluded that there was insufficient evidence to prove that DrFloras had created consumer confusion. Conclusion To conclude on the trademarks and sports supplements it is clear now that there are enough laws that regulate the use of supplements especially when one is active in professional sports. It is also clear that the sport supplement industry is growing at a high rate with different and varied companies cheeping in to unveil their products. In addition, this continued growth of these firms is leading to the law stretching its hand to help other firms from being violated through misuse of their trademark. It is therefore, conclusive that firms dealing in sports supplements need to embrace the use of unique trademarks in marketing their products. They need to ensure that they have registered these trademarks to avoid future conflicts. Finally, they need to abide by the law in ensuring that their products conform to the law this ensures that trademark image is maintained. Bibliography Dalby Austin. Food in the Ancient World A-Z. New York: Routledge, 2008. Print. Gabner, Judith, Nutrsuplaw, DrNatura and DrFlores. Confusingly Similar Trademarks for Herbal Supplements[4] Retrieved from http://nutrisuplaw.com/drnatura-and-drflores-are-not-confusingly-similar- trademarks-for-herbal-supplements/. Viewed, 22nd Oct, 2012. Kids Health, sports supplements retrieved on October 23, 2012 from http://kidshealth.org/teen/food_fitness/sports/sports_supplements.html Joel B. Rothman, Research4Health, The Nutritional and Dietary Supplement Law Blog (2012) retrieved from http://www.research4health.net/news/. Viewed, 22nd Oct, 2012. Michael Higgins. Hard to Swallow: While Federal Law Shut the Door on Regulation of Dietary Supplements. London: Cengage, 2010.Print Nicholas Clynder. Legal nutritional supplements during a sporting event. Chester: University of Chester, 2009. Print. Read More