Cruz Law, PLLC

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SF Brewery names brew after LeBron James

A San Francisco Brewery has named one of its beers after LeBron James after the Golden State Warriors defeated James’ Cleveland Cavaliers to win the NBA Title.  The Hazy IPA is being dubbed, Lebron Tears.

While the name has a lowercase b, it’s clear that the beer is named after LeBron James.


It’s clear that the beer is poking fun at LeBron James.  The legal question is whether James has a trademark or right of publicity claim against the brewery.

Earlier this year, James was critical of Alabama Crimson Tide football coach Nick Saban for a web series similar to James’ he entitled, “The Shop.”  In fact, James and the ESPN’s Uninterrupted sent a demand letter about potential infringement claims.  But James was sued by a company claiming that the series was a copy of a series set in a barber shop entitled, “Shop Talk.”  The Complaint alleges that he had discussions with James about the possibility of a collaboration.  The company did trademark the “Shop Talk” name.

While there is a copyright infringement claim in “The Shop” lawsuit, the Lebron Tears beer may have similar issues when it comes to trademark.  Despite the small letter b, it’s clear that LeBron James is the one being lampooned.  The brewery admits as much with its social media post.

Would James have legal recourse against the brewery?  Maybe. In all likelihood, the brewery would claim that Lebron Tears is a parody.  In these instances, the central issue is if there is a likelihood of confusion. This is a flexible test that analyzes a variety of factors including freedom of expression.  Also, whether consumers would be confused with consumers. Here, since the brew is being sold in San Francisco where most consumers are Golden State Warrior fans, they know that the beer is not endorsed by James.

MLB Pitcher sues web site using likeness

Cleveland Indians pitcher Trevor Bauer is suing a Louisiana-based company for violation of his Intellectual Property rights.

Bauer is suing Brent Pourciau and his company Top Velocity, LLC.  The company markets and sells its products and services online.  It specializes in offering online camps as well as “a physical facility where individual training is provided.”  It also uses social media (i.e., YouTube, Twitter and Facebook).

Basically, Top Velocity was using Bauer’s images on its web site and ads without his consent.  A cease and desist order was issued to Top Velocity which took time for the company to takedown.  But, it did not provide an affidavit of proof to Bauer’s legal counsel.

It may be that Top Velocity was dragging its feet on the issue or that it thought that Bauer was asking more than it needed to legally comply with an infringement claim.

The lawsuit was filed on June 4, 2018 in the US District Court for the Eastern District of Louisiana.

In a seller’s market, don’t give up your rights

I recently wrote an article about the competitive Seattle housing market.  In the clamor for buyers to land their dream home, they sometimes concede rights to purchasing by waiving provisions in the real estate contract.

Some waivers include appraisal, inspection and financial contingencies.  This is done to expedite the home-buying process and make themselves standout to the sellers.  But, this could lead to future issues that cannot be rectified due to the waivers.

Additionally, it should be noted that attorneys can draw up real estate contracts applicable to the specific home buying situation and need not rely on the standard contract provided by the MLS.

Players Association takes up battle for Judge TM rights

The Major League Baseball Players Association has filed a Notice of Opposition against an individual looking to trademark “Here Comes the Judge,” which hopes to garner consumers based on the popularity of New York Yankee Aaron Judge.

Michael Chisena filed a Section 1(b) application intending to use the mark “Here Comes the Judge,” for “Clothing, namely, t-shirts, shirts, shorts, pants, sweatshirts, sweatpants, jackets, jerseys, athletic uniforms, and caps.”  The application was filed in April 2017.

A Notice of Opposition was filed this past March.  MLBPA on behalf of Judge argues “exclusive right to use, license and sublicense the names, nicknames, likeness, and certain other rights of Judge, including but not limited to the Judge Marks and Judge’s name.” The defendant has filed its Answer to the Notice of Opposition with general denials to the complaint lodged by the MLBPA.

MLBPA asserts the following arguments:

-APPLICANT’S MARK COMPRISES THE NAME OF A PARTICULAR LIVING INDIVIDUAL WITHOUT THAT INDIVIDUAL’S CONSENT

-FALSE SUGGESTION OF A CONNECTION WITH OPPOSER

-LIKELIHOOD OF CONFUSION

-DILUTION

There are several “Here Comes the Judge” mark applications with Section 1(b) designations.  This section are for applications that intend to use the mark at a future date but do not currently use the mark.  A Section 1(a) application includes those that are currently in use.  The big difference between the two is the submission of a “specimen” for Section 1(a) which depicts the mark in commerce.  In 1(b) application, the mark applicant has a certain period of time to launch its product and submit a specimen.

Although it is the argument of MLBPA that Chisena filed the mark to capitalize on Judge’s popularity and the application “Here Comes the Judge,” is a catchy take on his last name to sell on shirts.  Certainly, Judge has a Right of Publicity cause of action, but the player’s association is trying to stop the registration of the mark to prevent alleged economic harm to Judge.

It’s clear that one can see Judge’s side of the story, but there is another issue as to how many recitations of a name does Judge own and if another famous person with the last name Judge would be prevented from trademarking or asserting a defense against another using a last name.