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madelinetess · 3 months

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Wouldn't it be nice?

“There are only ten minutes remaining till the end of this match and Richmond players seem to be in quite the pickle.”

“You are right Arlo, it does appear to be a dangerous situation for the greyhounds. As of now the score is 1:1 but Chelsea’s in possession and it looks like they may score the winning goal after all.”

“A beautiful pass from number 11, getting through Richmond’s defence, the only thing between the Chelsea Striker and leaving the match victorious is Richmond’s goalie, Zoreaux, who seems to be having a tough day today.”

“The greyhounds are relying quite heavily on their defence players today… What’s this? A beautiful kick by the Chelsea attacker! It’s soaring through the air and… By God, Arlo, did you see that?”

“If you are referring to the brilliant dive by Richmond’s number 13, then yes, I most definitely saw it. We simply have to look at it again, the way he got in there just in time to kick the ball right back into the stands, simply marvellous.”

A slow motion replay of Jan’s desperate save displayed on the screen accompanied by the cheers of the fans in the stands and the live commentary by both Chris Powell and Arlo White.

“The Dutchman did it again. He has definitely been the backbone of today's defence, foiling most of the scoring attempts. But back to the game, it is now time for Nelson Road residents to either try and keep the ball for the remaining four minutes, or to shock us with some clever closing play.”

“You never know what to expect from them, and they’ve been continually pulling all kinds of tricks from their sleeves. Chris, what do you think is going to happen?”

“It remains to be seen, Arlo, we’ll just have to wait.”

“Bumbercatch passes to Montlaur, Montlaur goes in to score, but no! It was a feint and it’s Jamie Tartt now with the ball. Tartt passes to Rojas who gets through Chelsea’s defence and gets the ball straight to number 12 and it’s a goal! A beautiful play by the Greyhounds mere seconds before the final whistle! Richmond winds up victorious with two goals from Tartt and Hughes respectively.”

“A beautiful display of teamwork indeed. It’s games like this one that truly highlight the unity of the Nelson Road Team, the famous ‘Richmond Way’ a term coined by Trent Crimm in his best selling book…”

The commentary was now fading away as the team exited the pitch, still euphoric after the win. Jan walked feeling exhausted but hyped up and was now heading to the locker room to celebrate along with the entirety of the team. The coaches were already there, waiting for them.

Everyone got seated and the room fell into silence, awaiting Roy’s words.

“Allright, I’ll make it quick. Good job Jamie, Colin,” He nodded at each respective player but then turned towards Jan “Jan Maas. You are the main reason we didn’t fuckin’ lose today!” Excitement in their manager’s voice crystal clear.

Dani was the first one to cheer, but soon everyone joined in and the whole locker room was once again filled with excited footballers. Shoulder pats and bear hugs were exchanged once again before Roy had to shout to get them to settle down and listen to the announcements.

“Oi! You have fifteen minutes to celebrate here, and after that I expect to see you all on the bus, ready to head to the hotel.”

With that Roy left to support Rebecca handling the interviews, and both Beard and Nate followed him out of the room, probably to settle some other matters.

The team changed quickly and it wasn’t even twenty minutes later that Jan sat next to Richard on the way to the hotel. The Dutchman pulled out a well loved book that was given to him for his birthday by the man sitting right next to him out of his bag. Richard himself could never read while in a moving vehicle, so as usual he opted for listening to music and looking out the window, completely zoned out.

The ride itself was short, and soon enough they all stood in the hotel lobby waiting to get their keys.

“Listen up people!” Coach Beard could be heard over the general ruckus “You get settled and then at 8PM sharp we meet in conference room 3 for our movie night! Jan Maas, today you get the honours of drawing the movie from our box of suggestions.”

A collective choir of whoops and whistles filled the foyer.

The movie night tradition became a thing when Ted was still their manager and it was one of the many things that stuck around even after he didn’t. Of course pillow fights also kept on happening, but the clean-up after a movie night is undoubtedly easier, and watching a silly movie is definitely a great way of winding down after a difficult match.

The box of suggestions though, was Phoebe’s idea that Roy decided to implement. At the beginning of the season each player got to write down one movie name on a post-it and put it in a purple glittery shoebox. Then, every movie night someone from the team would draw a piece of paper from said box and whatever it said, that was the movie they were going to watch.

The suggestions were obviously restricted, to the disappointment of both Moe and Richard. Richard’s, because almost everyone voted no, on classic French cinema, and Bumbercatch’s for reasons unspecified. The only other rule was no one was supposed to know who suggested what.

So obviously Jan and Richard turned into a game to see if they could guess who wrote down which movie. So far they were pretty sure that Dani suggested Night at the Museum and Sam was definitely the one who pitched Ratatouille, as for the other ones they were based purely on speculation. Both of them were pretty positive that Thierry picked How to lose a guy in 10 days. Richard kept disagreeing with him about who suggested Baby Driver, it was a tie between Jamie and Isaac, but for some reason the same disagreement also occurred while debating who picked Ocean’s Eleven.

Some other movies they watched included classics such as Jojo Rabbit, Monty Python and the Holy Grail, Legally Blonde, The Greatest Showman, and Knives Out. The jury was still out on all of these.

They agreed not to disclose what movie they themselves suggested, to keep the game more interesting.

Jan however knew exactly what Richard picked. He remembers the first practice of the season, he remembers the weather outside, and the exact button up shirt that Richard wore that day.

Why does he remember that? Well, because he spent the entire after-practice meeting staring at the four undone upper buttons, and not thinking about what movie he should put down as his suggestion. That in turn meant he caught a glimpse of Richard’s post-it and the two titles written in neat handwriting. Duplex and 50 First Dates sat right there being deeply analysed by the Frenchman struggling to pick one. That’s when Jan decided, whichever one his friend doesn’t pick, he was going to write down.

The jangle of the room keys brought the Dutchman back to Earth. Richard has already gone and picked them up from coach Beard and was now motioning for Jan to follow him to their accommodations.

Most of the team roomed on the same floor, but the coaches made sure to get themselves settled the furthest away from the rest of the team. The rooms were nice enough, with a small balcony, two beds, wardrobe, a table with some chairs and an adjacent bathroom. Enough for a one night stay.

Richard immediately threw his things onto the bed by the window and sat down on it. After dozens of times sharing a room at away games Jan already knew that the Frenchman loved being woken up by the sun.

The Dutchman took the other bed and unpacked some of their bathroom things. There was no use taking two tubes of toothpaste, so they both agreed beforehand who was going to take one, same with soap and shampoo. Neither of them trusted the ones provided by the hotels.

After they were done unpacking they headed down to the dining room to grab some dinner before coming back up to their room to get changed into some sweatpants and comfy t-shirts and whatnot. Then the only thing left was to locate conference room number 3.

On the stairway they were joined by Colin, Isaac, Moe and a couple of the reserves. They already went up a flight before Reynolds stopped them to ask a question.

“Hold up, does anyone know where we are supposed to go?”

“Conference room 3, duh” Colin answered.

“Yeah, but do any of you actually know where that is?”

Everyone stopped in the middle of the stairway and shook their heads.

“Then where the hell are we going?” Goodman piped up.

“O'Brien, didn't you say that your roommate stayed back to ask the receptionist about it?”

“Yeah, he did.” Tom turned around as if to locate said roommate and didn’t seem to find him. Then he turned around again, hoping for a different result. That clearly didn’t seem to help. “I forgot Bhargava!” he yelled out and dashed down the stairs back to the rooms.

“Do you guys think he just locked him inside their room?” Colin asked, looking after the goalkeeper.

“Maybe he just forgot to tell him we were going already..?” Isaac supplied.

“Nah, he totally locked him in,” Richard laughed heartily and looked at Jan smiling which he reciprocated.

“Isn’t there a floorplan somewhere maybe?” Jan asked no one in particular. The Dutchman looked around trying to find something that would tell them where to go. While they were still standing around on the stairs they all heard O’Brien shouting.

“Lads! We got to go downstairs, not up!” A chorus of groans lasted a good ten seconds it took them to get downstairs and back to the lobby.

Once they finally reached the conference room Roy looked at them, then at his watch, and then back at them.

“What took you so long, you got fuckin’ lost, or something?”

“Well, what matters is that we are all here now.” Reynolds said after a beat of silence.

“That is the bare minimum, we said at 8, it’s 8:20”

“Actually, it’s only 8:17 so it’s closer to…” Goodman started but one look from their former captain turned manager shut him up.

"We need to learn how to appreciate the little things, like finding our way, or Richard…" Jan said, throwing an arm around his friend, who was standing right next to him.

The Frenchman was not amused, and rolled his eyes pointedly exaggerating the movement.

"Laugh all you want, I'm not the one that had to ask the hotel desk to get another duvet, because I didn't fit under the one that comes with the room."

“Fuckin’ hell… Enough of that, get inside, sit down and get ready to watch the movie.” Roy stopped them before they could drag the conversation out even longer. “Jan, come with me to pick the movie.”

Inside the conference room a projector was set up, along with a few rows of nice cushioned chairs to sit on. Roy stood in front of the chairs waiting for the footballers to settle down on their seats.

“Today's match was hard,”Roy began his speech. “but we pulled through. And we fuckin’ won!” Here Roy paused, waiting for the cheers to die down. “And we owe it not only to the ones scoring the goals, but to our defence as well, especially to Jan Maas over here, so Nate,” Here Roy turned to the shorter man, “Bring in the Box!”

Nate approached with the glittery shoebox and dramatically opened the lid before turning to Jan waiting for the Dutchman to pick out a post-it note with the title of today’s movie.

Jan covered his eyes and reached into the box pulling out a piece of paper folded twice, handing it to Roy and walking off to sit down on an empty chair next to Richard that the shorter man saved for him.

“And the movie of the evening is… 50 First Dates!”

Some people whooped, some looked around confused. Richard turned to look at Jan grinning. Jan returned the gesture for the second time today and turned to the screen waiting for the movie to start. He has never seen it before, but since Richard enjoyed it, then it must be nice.

The snack bowls were passed around, the light turned off, and the movie put on. Jan held onto the popcorn he was handed. For the next hour and a half every now and then the Frenchman would nudge him to get the bowl within his reach.

From time to time someone would snicker at some joke, Jamie definitely winced at the scene where Lucy beat Henry up, Thierry pointed out the fact that the dolphins were named Mary Kate and Ashley and Dani shot up during the diary burning scene to exclaim that it’s almost like that time when they were getting rid of the ghosts from the treatment room.

They all bawled their eyes out at the break up scene, and tissues had to be passed around during the final one. Jan ended up liking the movie and judging by the fact that by the end most of the players were trying to hold back tears, so did they.

Once the light came back on the coaches gave them ten minutes to tidy up, and get back to their rooms. Isaac and Sam stayed the longest to make sure everything was back to how it was beforehand, which meant Colin was stuck outside the doors waiting for his room key that his best friend held on to, Jan and Richard decided to keep him company.

“How’d you like the movie?” the Welshman asked, noticing how the two of them decided to wait around with him.

“I liked it” Jan simply answered “And you, Richard, you’ve seen it before, right?”

“Yeah, but I still find it enjoyable.”

“Yeah? Is it because Henry reminds you of… well, you?” Colin laughed

“Why? Because Dickie here is a shameless flirt, or actually a softie that cares a lot about penguins?” Colin joked as Isaac joined their group while Sam was locking up the conference room.

“I’ll have you know, penguins are actually great animals.”

“Yeah, and they are also the best secret agents in the world” the Nigerian finally joined their tiny circle, and they were able to start moving towards their rooms.

They all stopped in front of Sam and Dani’s room to talk a bit more before retiring for the night. Jan couldn’t help but notice how short Richard looked standing next to them all, well, maybe not next to Colin, but the rest of them towered over the Frenchman a little.

After about ten minutes of idle lounging around Colin yawned loudly prompting their discussion to halt.

“Need your beauty sleep?” Isaac asked.

“Better not, because he would need a lot of it.” Richard quipped.

“And remember, we have to be up early tomorrow.” Jan replied without missing a beat.

Colin flipped them both off as they bid the group farewell and took off in the direction of their room.

Back in their room they got ready to sleep taking turns in the bathroom. Richard went in first so when Jan exited after his own shower he was surprised to see his friend still up clearly waiting for him. As soon as the Frenchman noticed Jan was done in the bathroom he motioned for him to join him on the bed, so Jan did.

“So, who do you think picked the movie? I’m pretty sure both Dixon and Goodman recognised it but I’m not sure any of them would have picked it as their one choice.”

“How about Tommy Winchester?” Jan suggested trying to seem oblivious.

“Nah, that’s also not it…Maybe Reynolds?” the shorter man continued to speculate.

“How do I know it wasn’t you?” It might have been a bit of a risky move there, but it wasn’t unsound to assume that. “After all you did know the movie and I remember you mentioning something about liking Drew Barrymore romantic comedies…”

“It does make sense, but let me tell you a secret. I wanted to put that one down, but ended up picking a different movie.” Richard winked at him and it took all the self control Jan had to not reveal to him that he knows. “Also, you remembered that comment about Drew Barrymore? I didn’t even remember it until you mentioned it.”

“We are friends, I remember things about you. Things like your favourite actress… Maybe not the French cinema ones, because most of them I’ve never heard of, but you know… other ones…”

“Give French cinematography a try, you may end up liking it. We could put a film on during our next charcuterie night?”

“How did you end up liking it? I didn’t think goat farms had access to a lot of fancy French cinemas.”

“Well, my maman had a big city soul and I got it from her. She never did get out of the farm, but I did and have been living with splendour for the two of us ever since. Never looked back…”

“You never talked about her before… She sounds like a lovely woman.”

“She was… She was the only one who would get my father to dance with her. He was the most stern man you’ve ever met, but when she put on an old record and asked him to dance he would, just like that… Bought them an Adele record for their 20th wedding anniversary with the money I earned in my first job because that was the only new release at the local store. Père and I listen to it every time I visit him back home.”

They were now both lying down, propped up on the big pillow and looking at the ceiling, Richard leaning on him.

“What is your family like? I don’t think I ever heard you talking about them either…”

“Well, I have a brother and a sister, both older than me, and my parents own a small corner shop…”

Jan woke up in the middle of the night disoriented. He looked around and noticed someone lying on top of him.

Richard’s rhythmic breaths and the rise and fall of his chest calmly brought Jan back to Earth and stopped him from panicking lest he wake up the smaller man. They must have fallen asleep whilst talking.

The Dutchman looked back at his friend and smiled softly at how the other man curled up into him. He made a move to reach for the blanket at the foot of the bed without stirring the Frenchman but was unsuccessful in his attempt as the other man stirred awake.

“Morning… Well, not morning, but there isn’t really a greeting for the middle of the night…”

“Hello to you too… Can we go back to sleep, or are you gonna move some more?”

“I… Well, uh… Sure, let’s, let’s get back to sleeping.” Before lying back down Jan draped the blanket over the both of them and spared one last look at his best friend. He waited before Richard’s breathing slowed down again before speaking.

“I was the one who put down that movie… Because I saw you struggling to pick one, and I decided to pick the one you wrote off.” He was now absentmindedly tracing patterns on Richard’s right shoulder and arm while spilling some stuff he’d be too scared to admit in the daylight. “I couldn’t stop looking at you that day… And many days before and after that. It’s been a thing for quite some time. And now I’m thinking that I’d like to buy a gramophone so that we could get a vinyl of some Adele album and dance to it, and maybe visit your dad on the farm… You could show me the goats. I've never touched a goat before… And maybe we could grow older together, but not as friends… As something…”

“Just so you know, I’m not asleep yet…”Richard whispered softly as Jan's face dropped. “And I think I would like that too, but maybe we could talk about it more in the morning?” Jan’s face went from horrified to touched to happy as he hugged the man lying next to him.

He pressed a soft kiss to the top of Richard’s head and burrowed his face in his hair. Richard in turn kissed his neck before turning to find a comfortable position and go back to sleep.

“Goodnight Richard”

“Goodnight Jan”

#janchard #richard montlaur #jan maas #it was supposed to be a short fic #long post #ted lasso #richmond movie night tradition #It was mentioned once that Richard likes romantic comedies with Drew Barrymore and here we are now #“I FORGOT BHARGAVA” is now immortalized in a fic #richmond boys #this got away from me...#spoilers for 50 first dates ig #Writing football commentary as both not a fan of the sport and not a native english speaker was... fun? Yeah it was fun.#I hope I did okay #I'll add the ao3 link in a reblog as soon as I post the fic on there

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ronlofland · 7 years

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Sue-per Bowl Shuffle III: The Year In NFL-Related Intellectual Property Litigation

Two years ago, I started worrying about what would happen if someone at a Super Bowl party asked me to explain an NFL-related lawsuit, particularly one of those intellectual property lawsuits that sports fans assume IP lawyers know about. This anxiety led me to put together the Sue-per Bowl Shuffle I and Sue-per Bowl Shuffle II: guides to trademark, copyright, patent and other intellectual property disputes concerning the NFL during 2014 and 2015 respectively.

We’ve got you covered again for 2016. NFL ratings may be down a bit, but intellectual property lawsuits related to the NFL most certainly are not, so there is a lot of ground to cover. As usual, we recommend that you laminate this article and put it next to the garlic-herb dip. If your guests have discussed the heck out of Deflategate but still can’t seem to get enough law-talk, just grab the article and start reading

The “Washington Football Team”

The WASHINGTON REDSKINS trademark continued to be the biggest IP football story in 2016. Native American groups have been complaining about the team’s name since the early 1970’s, and litigating it since at least the 1990’s. Amanda Blackhorse and other Native Americans argue that any registration of the name as a mark is invalid pursuant to Section 2(a) of the Lanham Act, which precludes registration of marks that “disparage . . . persons, living or dead.” Blackhorse convinced the TTAB and the Eastern District of Virginia that the team’s mark should be canceled and that Section 2(a) does not violate the First Amendment. Pro-Football, Inc. v. Blackhorse, 2015 U.S. Dist. LEXIS 90091 (E.D. Va. July 8, 2015). The “Washington football team,” as the squad has come to be called by those supporting a name change, appealed to the Fourth Circuit.

In the meantime, the similar matter of In re Tam (the case regarding whether the SLANTS trademark is disparaging) also has been winding its way through the federal courts. Before the Fourth Circuit could take up the WASHINGTON REDSKINS case, the Federal Circuit heard the SLANTS case and held that Section 2(a) did indeed violate the First Amendment. When the Supreme Court allowed a certiorari petition to review the SLANTS case, the Washington football team sought permission to skip its Fourth Circuit appeal and go straight to the Supreme Court so both cases could be decided together. The Supreme Court denied this request, so the Washington team had to sit on the sidelines during the January, 18 2017 oral argument in the SLANTS case.

A Gronking to Remember

In 2014, Lacey Noonan (a pseudonym for a guy named Greg McKenna) published A Gronking to Remember, an erotic fiction in which a young couple’s relationship is torn apart by a woman’s sexual obsession with New England Patriots tight end Rob Gronkowski and “the primal power of the Gronk spike.” The cover of the book featured a photograph of a young couple, with Gronkowski goofily looming in the background. The book claims to be only the first in a series of Gronk-inspired erotica, and somewhat charmingly advertises itself on Amazon.com thusly: “If you read two books about Rob Gronkowski this year, make the second one A Gronking to Remember.”

However, the actual Ohio couple that was depicted on the cover didn’t find anything about the book charming, because they hadn’t given permission for the image (which was from their wedding) to be used. The couple filed a complaint, alleging violation of their right of publicity, against the author and against the online retailers of the book, including Amazon.com. In March, the Southern District of Ohio denied the author’s motion for judgment on the pleadings, rejecting the author’s argument that the use of the image was not commercial in nature. Meanwhile, the online retail defendants moved for summary judgment on other grounds, claiming that they were shielded from liability under Section 230 of the Communications Decency Act. The Court sidestepped the issue of Section 230 immunity by holding that the online retailers were not “publishers” for purposes of Ohio right of publicity law, and granted summary judgment on that basis. In July, the Court certified an appeal by plaintiffs to the Sixth Circuit Court of Appeals, which will allow the couple to determine the potential liability of the online retailers before proceeding with their claims against the author. Roe v. Amazon, 170 F. Supp. 3d 1028 (S.D. Ohio 2016).

“The Case Against Olivia Munn”

Perhaps the ugliest dispute this year between a team and its fans stems from the website www.totalpackers.com, which was founded by a bunch of Green Bay Packers boosters in 2008. The site, which generates revenue through pop-up ads, offers news and commentary about the team and, over the years, has become well known among the “Packers family.” The site also includes a “Broads” section (later renamed “WAGs & Such”), which features photos of and commentary about the female companions of team members. These days, the “Broads” section appears to be primarily dedicated to Olivia Munn or, more specifically, obsessive hand-wringing over Olivia Munn’s alleged impact on the performance of her boyfriend, quarterback Aaron Rodgers (stories include: “The Dream is Over: The Case Against Olivia Munn” and “Have we mentioned that Olivia Munn is a horrible person?”).

In 2016, the Packers purportedly became fed up with the “Broads” section and, allegedly for that reason, initiated a UDRP arbitration to wrestle away the <http://ift.tt/2kk5Qhx; domain. The arbitration panel rejected the website’s laches argument (i.e., that the Packers waited too long to file the complaint), because the UDRP does not recognize such a defense. However, the panel found that the site, although commercial, offered actual news and commentary about the team, and this demonstrated a legitimate interest in the <http://ift.tt/2kk5Qhx; domain, thus precluding a finding of bad faith. The Packer’s complaint was denied: Let the puerile scapegoating of Olivia Munn continue! Green Bay Packers, Inc., v. McMahon, Case No. D2016-1455 (WIPO Oct. 21, 2016).

Madden NFL

Robin Antonick, a computer programmer and former college football player, created the underlying source code for the first version of the EA Sports Madden NFL game, released in 1988 for the Apple II. However, when EA Sports moved on from Apple II and introduced new versions of the game for the Sega and Nintendo platforms, it hired someone else to write the code. In 2011, Antonick filed suit against EA Sports, claiming that these new codes were copied from his original, in violation of a contract and copyright law. However, by this time, Antonick’s original source code no longer existed. So, in order to prove his case, Antonick recreated for the jury visual representations of the Apple II version of the game and, using expert testimony, worked backwards to establish what his original source code contained and to argue that the later EA Sports codes were substantially similar. The jury returned a verdict for Antonick, but the District Court nixed the jury’s verdict and granted EA Sports’ motion for judgment as a matter of law. In November, the Ninth Circuit affirmed. According to the Court, a jury can only determine that two works are substantially similar in “total concept and feel” if it has both works in front of it, and that wasn’t the case here because the Apple II source code was never in evidence. Antonick is seeking en banc review from the Ninth Circuit. Antonick v. Electronic Arts, Inc., Case No. 14-15298 (9th Cir. 2016).

The Right of Publicity

Meanwhile, EA Sports wrapped up a dispute with Cleveland Browns legend Jim Brown. EA Sports had sought permission to use Brown’s name and image for the “historic teams” feature of the game. Brown declined and EA Sports didn’t use his name, but allegedly nevertheless used his likeness, specifically by incorporating into the game “a virtual player on the historic 1965 Cleveland Browns team with a profile of characteristics substantively identical to those of Brown,” including his “approximate height, weight, age, home state, skin color, handedness, as well as relative skill level,” such that fans would easily recognize the character as a virtual depiction of Brown. EA Sports’ motion to strike was denied last year, and this year Brown settled for a reported $600,000, a sum that includes attorneys’ fees. Brown v. Electronic Arts, Inc., Case No. BC520019 (Los Angeles Superior Court).

A similar case brought by a group of former players who found themselves on Madden NFL “historic teams,” including former Cincinnati Bengals running back Tony Davis, is still alive in federal court. Last year, the Ninth Circuit held that the First Amendment did not bar right of publicity claims over realistic portrayals of former players in the game. EA Sports’ petition for certiorari to the Supreme Court was denied, sending the parties back to the Northern District of California to conduct discovery and fight over the propriety of class certification. Davis v. Electronic Arts, Inc.,Case No. 3:10-cv-03328 (Northern District of California).

A different right of publicity lawsuit involving former NFL players looks like it has finally come to an end. In 2009, a group of 23 retired players — led by actor and former LA Rams defensive end Fred Dryer – brought a putative class action against NFL Films, which creates various documentaries and other programs about the NFL. The suit alleged that NFL Films’ use of footage of games in which the class members appeared constituted a violation of their publicity rights under the laws of various states. After most of the class members settled, Dryer and a few others proceeded as individuals, but the District of Minnesota allowed the league’s motion for summary judgment. In February 2016, the Eighth Circuit affirmed, agreeing with the District Court that the NFL’s use of the game footage was not commercial speech, and in addition was protected by the “newsworthiness” and “consent” defenses applicable to common law right of publicity claims. The lower court dismissed the case with prejudice in December. Dryer v. National Football League, 814 F. 3d 938 (8th Cir. 2016).

The 12th Man and Other Unlicensed Uses

Texas A&M University’s 12TH MAN trademark is ninety-five years old but continues to be the subject of IP disputes. The school began using the mark in 1922, in commemoration of a student who voluntarily suited up on short notice to fill in during a football game against Centre College. The slogan later came to be used by both the Indianapolis Colts and the Seattle Seahawks as a gushing tribute to their fan bases. In February 2016, Texas A&M settled a trademark infringement action against the Colts. Texas A&M University v. Indianapolis Colts, Inc., Case No. 4:15-cv-03331 (S.D. Tex.). Meanwhile, the Seahawks have been using the mark under a series of agreements with the school, the latest of which involved a $140,000 payment for limited use in the Pacific Northwest during a five-year term. The Seahawks are reportedly attempting to transition away from the 12th MAN mark and towards other marks it has registered for its own use, such as 12, THE 12S and WE ARE 12. In June, the Seahawks moved to protect these marks by opposing a Washington company’s application to register 12 DYNASTY for sporting events and beer. That application was abandoned. Football Northwest LLC v. Creative Concepts, Opposition No. 91228332 (Trademark Trial & App. Bd.).

After serving time in prison on drug-related crimes, former Dallas Cowboys running back Sherman Williams decided to turn his life in a positive direction and co-founded The Palmer Williams Group, a non-profit youth athletic organization in his hometown of Prichard, Alabama, which includes a football team called the “Prichard Cowboys.” Whether or not the Dallas Cowboys mind that a bunch of kids are using the same name for a youth football team, they weren’t too thrilled about Palmer Williams’ recent application to the USPTO. The application sought to register the words PRICHARD COWBOYS, along with a stylized star logo very similar to the NFL team’s well-known sigil, for t-shirts and other apparel. The Dallas Cowboys opposed the Prichard Cowboys’ application. No doubt finding themselves somewhat overmatched, the Palmer Williams Group abandoned its attempt to register the mark. NFL Properties LLC v. The Palmer Williams Group, Opposition No. 91229911 (Trademark Trial & App. Bd.).

Many of this year’s NFL-related IP disputes arose from the actions of opportunistic and/or slightly overzealous fans. The Carolina Panthers successfully opposed a fan’s application to register the mark I GOT THE PANTHERS FEVER PANTHERS FEVER BABY for t-shirts. Panthers Football LLC v. Cunningham, Opposition No. 91230043 (Trademark Trial & App. Bd.). Meanwhile, a group of Buffalo Bills fans, calling themselves the Bills Mafia, applied to register a stylized logo with the word MAFIA superimposed on a buffalo. According to the application, the group intended to use the mark to sell merchandise featuring the logo (such as footballs and helmets) and then donate the proceeds to charity. The team opposed, and the fan group has since withdrawn the application. Buffalo Bills, LLC v. Buffalo FAMbase, Inc., Opposition No. 91225627 (Trademark Trial & App. Bd.).

The Oakland Raiders made some headlines this year by applying to register the LAS VEGAS RAIDERS mark, fueling speculation about the team’s move to Sin City. After another rumor had the team moving to San Antonio, a Raiders fan attempted to register the SAN ANTONIO RAIDERS mark, with the idea of using it as part of an attempt to block the team’s move. In June, the USPTO issued an office action refusing the mark on the ground that it suggests a false connection with the Raiders football team (and, of course, that suggestion was the whole point of the mark). The fan has not responded to the office action within the allotted time, and the application appears headed towards abandonment. The Oakland Raiders themselves have not yet opposed this or other SAN ANTONIO RAIDERS applications by fans, but they have opposed an application to register a logo (the phrase ONE NATION BC in a black and silver shield featuring a Grim Reaper caricature) for the service “non-profit fan club for Oakland Raiders fans.” After the Raiders filed its opposition, the applicant discharged its attorney and failed to respond, resulting in the issuance of a default on the grounds of “apparent loss of interest in this proceeding.” The Oakland Raiders v. Bre’haut, Opposition No. 91230143 (Trademark Trial & App. Bd.). M

And speaking team moves, just before we went to press on this article, the San Diego Chargers announced that they are planning to move to Los Angeles, and will start the 2017-2018 season as the Los Angeles Chargers. This was not entirely shocking since the team had applied for the LA CHARGERS mark the prior year. However, that application is in some jeopardy at the moment, because the L.A. Gear apparel company has opposed the LA CHARGERS mark on the grounds of likely confusion with its L.A. GEAR, L.A. GIRL and other “L.A.” marks. The apparel company has not opposed the team’s application to register the more cumbersome LOS ANGELES CHARGERS mark, which is just as good but probably harder to fit on a hat. L.A. Gear, Inc. v. Chargers Football Company, LLC, Opposition 91232118 (Trademark Trial & App. Bd.).

The Fifty-Six Foot Photo Bomb and Other Sponsorship Disputes

As part of its preparations for a new stadium in the Downtown East neighborhood of Minneapolis, the Minnesota Vikings entered into agreements with its would-be neighbors to prevent them from building giant rooftop signs intended to “photo bomb” the area around the facility, thus diminishing the value of stadium sponsorships and naming rights. One of those neighbors, Wells Fargo, was in the process of building large office towers right next door, and ended up installing a fifty-six-foot wide rooftop sign consisting of its name in eight-foot long illuminated letters, clearly visible in aerial photographs during stadium events. The Vikings, claiming that the sign violated the agreement and detracted from the “broader holistic stadium and district” image, filed suit in the District of Minnesota. In June, the Court agreed with the team and ordered that the signs be removed. Minnesota Vikings Football Stadium, LLC v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 82430 (D. Minn. June 23, 2016).

Meanwhile, the Kellogg company hit on the idea of registering the mark OFFICIAL SNACK OF FOOTBALL in connection with potato chips and cereal bars. This caught the attention of the Frito-Lay company, which is the actual “Official Salty Snack of the NFL,” and spent quite a bit of money to obtain that sponsorship. Frito-Lay therefore opposed Kellogg’s application, arguing that the Kellogg mark is deceptively misdescriptive because it gives the false impression that Kellogg also is an NFL sponsor. The matter has been suspended while the parties are engaged in settlement negotiations. PepsiCo, Inc. v. Kellogg North America Company, Opposition No. 91226866 (Trademark Trial & App. Bd.).

Super Bowl ads also continue to be a hotbed for intellectual property wrangling. Pepsi’s 2016 Super Bowl ad began with the close up of a jukebox, followed by the transcendent Janelle Monae dancing from room to room, each room encompassing the music and style of a different decade. This advertisement prompted a copyright infringement lawsuit from advertising agency Betty, Inc., which alleged that the ad was derived from a written proposal it pitched to Pepsi the previous year. That proposal included a “human jukebox” and a “hero character” moving from location to location within the jukebox, each location featuring the “Joy of Pepsi” jingle in a different musical genre. Pepsi has moved to dismiss, arguing that the only similarities between the works are not protected by copyright, such as the idea of a character dancing through various musical genres, and the scénes á faire necessary to depict each genre. The motion is pending. Betty, Inc. v. PepsiCo, Inc., Case No. 7:16-cv-04215 (S.D.N.Y.).

Hey, that was my idea!

In 2007, Everette Silas and Sherri Littleton shopped around their idea and screenplay for a program called Off Season, which told the story of a morally bankrupt NFL quarterback who owned a nightclub at which other players indulged in all sorts of nasty and illegal activity. Silas and Littleton met with HBO and with a group of producers, one of who shared the materials with actors Mark Wahlberg and Dwayne Johnson. Wahlberg and Johnson allegedly came close to signing an agreement to produce the show, but negotiations broke down over who would get the “Created By” credit. Several years later, HBO introduced the pilot episode of Ballers, starring Johnson and produced by Wahlberg, which tells the story of a retired NFL linebacker now working as a financial manager for young players. Silas and Littleton filed a copyright infringement action in the Central District of California against Johnson, Wahlberg and HBO, alleging that Ballers was derived from Off Season. The defendants moved to dismiss, arguing that Ballers simply is not similar to Off Season. The District Court agreed with the defendants. The two works were only similar in the most general ways. For example, Plaintiffs contended that both works “follow an African American football player who is essentially a business man who tried to monetize his friendships with other professional football players.” The Court found that, even if this was a protectable element (and not an unprotectable abstract idea), it was not an accurate characterization of the two works or their similarities. The Court came to similar conclusions with regard to the rest of Plaintiffs’ alleged similarities, including the assertions that both works included a player being interviewed by the press, another player dying, and the main character at some point bribing a police officer. The complaint was dismissed, and the Plaintiffs have appealed to the Ninth Circuit. Silas v. HBO, Inc., 2016 U.S. Dist. LEXIS 107944 (C.D. Cal. Aug. 17. 2016).

Attorney Nick Katsoris also alleges that his idea was stolen. Katsoris is the author of a series of children’s books featuring Loukoumi the Lamb, a substantial portion of the profits from which Katsoris donates to the Make-A-Wish foundation and other charities. In 2007, Katsoris launched a competition in which children were encouraged to draw a picture of the themselves with Loukoumi and complete the phrase: “I want to be a ________ because _____”. Katsoris later pitched the idea of turning this contest into a television program to various entities, including Nickelodeon. Nickelodeon didn’t want to work with Katsoris, but in 2016 did launch the program “I wanna be…” (later renamed “All in”) starring and executive produced by Carolina Panthers quarterback Cam Newton. Katsoris filed a complaint in the Southern District of New York, alleging that the program infringes both his copyrights and trademarks. Motions to dismiss are pending. Katsoris v. WME IMG, LLC, Case No. 1:16-cv-00135 (S.D.N.Y.).

Hastily Borrowed Photographs

Last year, New York Jets quarterback Geno Smith suffered a broken jaw during the pre-season when he was walloped during a locker room altercation. The following week, photographer Angel Chevrestt snapped some photos of Smith playing catch with a friend outside his apartment, and then licensed those photos to the New York Post, which printed them as the “exclusive” first photographs of Smith since his jaw surgery. CBS wanted in on the story, and reprinted the images without permission on a website and on screen during a game telecast. Chevrestt filed a copyright infringement complaint against CBS, alleging both infringement and improper removal of copyright management information (specifically, the gutter credit that had been included in the Post story). CBS initially indicated an intent to assert a fair use defense, but the matter settled this July. Chevrestt v. CBS Broadcasting, Inc., Case No. 1:16-cv-00523 (S.D.N.Y.).

Meanwhile, the Bleacher Report was so excited about the news that Patriots Tight End Rob Gronkowski was starring as a police officer in the upcoming film You Can’t Have It, that the popular sports website appears to have inadvertently published some production stills owned by BWP Media, a photographic services company and frequent copyright litigator. BWP Media filed a copyright infringement action in the Central District of California. The matter quickly settled, and Bleacher Report removed its article about the film. BWP Media USA v. Bleacher Report, Inc., Case No. 2:16-cv-00196 (C.D. Cal.).

Football Technology

FieldTurf USA (of Montreal) brought a patent infringement claim against rival UBU in the Northern District of Illinois. FieldTurf is the exclusive licensee of a patent for a particular synthetic turf product used by many NFL teams for their practice facilities. According to the complaint, the success of this product has led to many “me-too” infringers, including UBU’s “Speed Series” synthetic grass surface, which UBU has installed or is planning to install at facilities owned by the Arizona Cardinals, Chicago Bears and others. UBU fired back with counterclaims alleging invalidity and inequitable conduct. Specifically, UBU alleges that the inventor of the FieldTurf patent lied to the patent examiner about the dates the product was first offered for sale. The matter is pending. FieldTurf USA, Inc. v. UBU Sports, Inc., Case No. 1:16-cv-05572 (N.D. Ill.).

Meanwhile, Lynx Systems of Massachusetts has been pursuing claims in the District of Massachusetts for misappropriation of trade secrets. Lynx’s IsoLynx system, an alternative to GPS technology, involves ultra-wide band radiofrequency tags worn by players, which transmit tracking data back to a central location, thus providing analytics on things like how far and how fast a player traveled during a play or a game. Lynx alleges that, after the NFL expressed interest in the technology, California’s Zebra Enterprise Solutions tried to acquire Lynx. The complaint further alleged that, when the acquisition attempt failed, Zebra hatched a scheme to steal Lynx’s technology while pretending to partner with it under a non-disclosure agreement. Zebra went on to become the “official on-field player-tracking provider” to the NFL, allegedly using Lynx’s technology. This year, the Court denied Zebra’s motion to dismiss, holding that the claims were “plausible.” Lynx Sys. Developers, Inc. v. Zebra Enter. Solutions Corp., 2016 U.S. Dist. 37777 (D. Mass. March 23, 2016)

Helmet maker Xenith also found itself involved in a false advertising case after it created ads that proudly announced its helmet was the top performer (“#1”) in a recent NFL-sponsored lab test. Rival helmet maker Schutt Sports filed a complaint against Xenith in the Southern District of New York, alleging that Xenith’s claims to have been the top performer were false because there was no single top performer in the test; rather, both parties’ helmets were placed in a ten-member “top-performing group,” among which there was no statistically significant safety difference. The case settled shortly after it was filed. Kranos I.P. Corporation v. Xenith LLC, Case No. 1:16-cv-00837 (S.D.N.Y.)

Rounding out the football technology category is the long-running dispute involving sports memorabilia collector Eric Inselberg, whose 2014 state court complaint alleged that the New York Giants and several team employees falsely implicated him in a fraudulent memorabilia scam. Inselberg also alleged that the organization misappropriated his “innovative portfolio of media-related patents,” which apparently included a system for allowing “wireless audience participation” at live events (i.e., transmitting ads to the cellphones of stadium attendees). Inselberg’s complaint included claims for unjust enrichment and misappropriation, but the Giants argued that these were really patent infringement claims which belonged in federal court, and attempted to remove the action. However, the District Court held that the state law claims were not preempted and granted Inselberg’s motion to remand the case back to state court. Inselberg asked for attorneys’ fees in connection with the motion to remand, but the District Court refused. Earlier this year, the Third Circuit affirmed the denial of fees. Inselberg v. New York Football Giants, Inc., 2016 U.S. App. LEXIS 18156 (3d Cir. 2016).

Stop Wining

Winemaking has become a popular avocation for many celebrities, including professional athletes, and this year two successful former NFL vintners found themselves involved in trademark disputes. In May, the Salvatore Ferragamo fashion company filed a trademark infringement action in the Southern District of New York against former NFL quarterback Vince Ferragamo, who opened up the Ferragamo Winery in about 2010. The fashion company takes issue with the winery’s prominent use of the same name, especially since the fashion company actually registered the FERRAGAMO for wine back in 2006. A pre-motion letter filed by the winery’s attorneys alleged that, although the fashion company may have registered the mark for wine, it has never sold wine in the United States and has not demonstrated an intent to do so. The letter also argued that there was no personal jurisdiction in New York because the only sale made by the defendant into the jurisdiction was to the plaintiff, who allegedly purchased a bottle just to set up the lawsuit. The docket indicates that the parties have been engaged in settlement discussions. Ferragamo S.p.A. v. Ferragamo, Case No. 1:16-cv-03313 (S.D.N.Y.).

Meanwhile, former Philadelphia Eagles safety Terry Hoage and his Terry Hoage Vineyards is battling Chilean winery Viña Undurraga over the TH mark for wine. Last year, the TTAB canceled Viña Undurraga’s TH registration on the grounds that Hoage had priority rights. This year, Viña Undurraga sought to undo that decision by filing an action in the Central District of California. Hoage’s motion to dismiss was denied, and jury trial has been scheduled for June 2017. Viña Undurraga S.A. v. Serine Cannonau Vineyard, Inc., 2016 U.S. Dist. LEXIS 82141 (C.D. Cal. June 2, 2016)

Take it From Me

Two football legends have found themselves involved in recent false advertising lawsuits over dietary supplements. In one case, a group of consumers filed a putative class action lawsuit in the Northern District of California, asserting false advertising claims against the makers of Joint Juice, which allegedly was promoted as a remedy for joint pain and stiffness. Former San Francisco 49ers quarterback Joe Montana acts as a spokesperson for the product, and is featured in television advertisements in which he proclaims that, ever since his doctor told him about Joint Juice, he now drinks a botte every day because “the glucosamine and chondroitin lubricates and cushions the cartilage in my joints, so I can move more easily all day long.” The class action plaintiffs alleged that this and other advertising messages were false, because the product does not contain sufficient amounts of those ingredients to have any positive effect on joint health. In April 2016, the Court denied the defendant’s motion for summary judgment, holding that there were genuine disputed issues as to the state of the scientific evidence regarding these health claims. Mullins v. Premier Nutrition Corp., 178 F. Supp. 3d 867 (N.D. Cal. 2016).

In a twist on the typical class action claim, a group of plaintiffs in the Eastern District of California decided to sue not just the manufacturer of a dietary supplement, but the celebrity endorser as well, in this case former Washington quarterback Joe Theismann. According to the complaint, Theismann endorsed Super Beta Prostate, which is marketed as a treatment for the symptoms of benign prostate hyperplasia, but is actually an “elaborate hoax” perpetrated by a “convicted felon” passing himself off as a “research chemist.” In 2014, the Court dismissed the matter because the plaintiffs had all received refunds and therefore had no standing. This year, the Ninth Circuit reinstated the claims as to one of the plaintiffs, because he had received his refund after joining the lawsuit. The Court made it clear, however, that no claims by any plaintiffs were appropriate against Theismann, who was merely a spokesperson and thus not an appropriate defendant under California false advertising law. Luman v. Theismann, 647 Fed. Appx. 804 (9th Cir. 2016).

Valuable Nicknames

Retired San Diego Chargers Linebacker Shawne Merriman, and his company, Lights Out Holdings, are becoming frequent trademark litigators in the Southern District of California. LIGHTS OUT was Merriman’ nickname as a player, and now it’s his registered trademark for clothing. Last year, we reported on Merriman’s suit against Nike, which was using the same phrase to market an all-black line of apparel. Lights Out Holdings, LLC. v. Nike, Inc., Case No. 3:14-cv-00872 (S.D. Cal.). That case settled in February on undisclosed terms, but then Merriman’s company filed two more trademark infringement complaints in 2016. The first was against the Vermont Teddy Bear Company, which was selling “Lights Out” pajamas on pajamagram.com. Lights Out Holdings, LLC. v. The Vermont Teddy Bear Company, Inc., Case No. 3:14-cv-00813 (S.D. Cal.). That case settled quickly, and then Merriman filed another case against a Maryland company called “Lights Out Apparel,” which had just opened a new website specializing in clothing related to billiards, and had recently inked an endorsement deal with teenage billiards phenome Chezka Centeno of the Philippines. That case is still pending, although the Lights Out Apparel website had already been taken down when we checked. Lights Out Holdings, LLC. v. Lights Out Apparel, LLC, Case No. 3:16-cv-02195 (S.D. Cal.)

When recently retired Seattle Seahawk Marshawn Lynch sought to follow in Merriman’s merchandising footsteps by filing an application to register his nickname, BEAST MODE, as a trademark for sports drinks, it was only a matter of time before the litigious Monster Energy Company, owner of the UNLEASH THE BEAST mark for sports drinks, stepped in and filed an opposition to the application. Lynch initially fought back with an answer to the opposition, but in March the parties settled, and Lynch withdrew his application. Monster has not attacked Lynch’s applications to register BEAST MODE as a mark for other items, including headphones, apparel, sunglasses and watches. Lynch also tried to register BEAST MODE as a service mark for “conducting and participating in football games,” but that application was rejected in light of the already-registered BEASTMODE USA mark for a fitness company in Wyoming. Monster Energy Company v. Lynch, Opposition No. 91220172 (Trademark Trial & App. Bd.).

The nickname “Orange Crush” was popularized in the 1970’s and 1980’s by sports writer Woody Paige and others to describe the Denver Broncos’ stalwart defense. By contrast, Orange Crush soda has been around since about 1916 and is now owned by Dr. Pepper, which holds several marks related to the beverage, the first of which was registered in 1924. Last year, the Broncos finally got around to applying to register ORANGE CRUSH for sports events and apparel. Dr. Pepper opposed, alleging confusion with its long history of commercial use of the same mark. This history of commercial use by Dr. Pepper and its predecessors in interest apparently included a marketing campaign in the 1970’s in which several Broncos appeared on official Orange Crush soda cans. In August, the Broncos abandoned the application. Dr. Pepper/Seven Up, Inc. v. PDB Sports, Ltd., Opposition No. 91228229 (Trademark Trial & App. Bd.).

Since retiring from the NFL in 2007, former New Orleans Saints offensive lineman LeCharles Bentley has been offering athletic training services under the O-LINE brand in association with an “LB” logo. In January 2016, Bentley brought a trademark infringement action against the maker of The Biggest Loser reality show, arguing that the program’s logo infringed his LB logo (both depict the letter “B,” the lower left corner of which also serves as an “L”). In September, the Court dismissed Bentley’s trademark dilution claim because he had failed to allege sufficient facts demonstrating that his mark was famous. A separate motion to dismiss the remaining claims, including for trademark infringement, is pending. Bentley v. NBC Universal, LLC (C.D. Cal. Sept. 28, 2016).

Psst . . . Wanna Buy a Super Bowl Ticket?

Each year, “large-scale, professional counterfeiters” of tickets and merchandise descend on the Super Bowl to make some extra cash. Days before last year’s Super Bowl L in Santa Clara, California, the NFL filed a preemptive trademark lawsuit against “Does 1 through 100,” unnamed counterfeiters the NFL suspected were on their way to the city to sell fake stuff. On February 2, 2016, days before the event, the Northern District of California issued a temporary restraining order against the manufacture or sale of counterfeit items, and further authorized the Department of Homeland Security to seize any offending goods it located. The NFL’s private investigators located 82 instances of counterfeit apparel and tickets at the game itself and, after the event was over, the NFL amended the complaint to add the names of the actual alleged counterfeiters who had been caught. The named defendants defaulted and, in May, the Court granted the NFL’s motion for a default judgment. The Court’s final order allows the NFL to dispose of the offending items, including by donating any counterfeit apparel to international charities. NFL Properties, LLC v. Humphries, 2016 U.S. Dist. LEXIS 61273 (N.D. Cal. May 6, 2016).

Previous Sue-per Bowl Shuffle articles are available at the links below:

Sue-per Bowl Shuffle I (January, 2015)

Sue-per Bowl Shuffle II (February, 2016)

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