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MLB lobbies Washington state regarding data as state mulls over Sports Betting Law

Sports betting in the state of Washington is still a dream for many businesses looking to capitalize on an industry that is still in the infancy stages across the nation since a U.S. Supreme Court ruling allowed states to decide among themselves whether to legalize gambling.

This past October Major League Baseball attended a meeting of the Washington State Gambling Commission to advocate for its “Five Pillars” to support safe gambling.  Of the pillars which MLB would like to see is the use of official league data and payment of a .25% royalty on handle to the professional leagues.  The “royalty,” also referred to as an “integrity fee” reflects a way that the leagues are looking into monetizing its data while also becoming a part of the new industry.

At this point, there is no state that has implemented league “royalties” or using league data mandatory.  Potential operators have argued against a royalty or data mandate as they believe that it would create a monopoly for leagues and a barrier to access for smaller operators due to the sunk cost of the fee. 

The Washington State Gambling Commission is suggesting an integrity unit by law enforcement.  A Commission spokesperson noted that it would like to be the regulator if a law is enacted. 

There are 3 sports betting bills in the Washington state legislature.  There is one which allows for sports gambling within tribal casinos and no allowance for sports betting.  There is another which would allow for sports betting at tribal and commercial locations but no mobile sports betting.  Then there is also a place-holder bill.

The upcoming NHL team coming to Seattle in 2021 may be an influencer into a law for the state as it announced a sponsorship deal with the Muckleshoot Casino making it the official casino partner of the yet-to-be named team.  One would infer that they would support a bill for “tribal-only” casinos. This would leave out commercial establishments at this point.

As a new legislative session looms in Olympia, we will see how this plays out for the state.  Sports betting, although opposed by some, would bring a stream of revenue to the state and its businesses.  With leagues lobbying for the use of its “official date” in exchange for a fee, there are many things yet to hammer out. 

Who is ‘The Man’?

Professional wrestler Ric Flair has filed an application with the USPTO to utilize “The Man,” mark.  Registering the mark might be a tough task as World Wrestling Entertainment (WWE) has a character using the same moniker.

Flair, who has appeared off and on with the WWE for some time is drawing a line with The Man trademark and it appears that he might take legal action he the company opposes his application.  Women’s wrestler, Becky Lynch, is using “The Man” as part of her character with the WWE.

Flair, has used the nickname in the past, but never filed an application to get the mark registered.  Moreover, his specimen that accompanies the application doesn’t really show how he’s really used the trademark.

Via Wikimedia Commons

On the other hand, the WWE has used The Man mark to sell t-shirts for Lynch.  But, the WWE has not made a move to trademark the name despite the fact its aggressive in ensuring that it owns the marks for most of his characters.

Flair is cognizant that Lynch is using the mark and even staked a claim to it on twitter:


The application by Flair is still in the initial stages and has yet to be assigned an Attorney Examiner which would determine whether it would be suitable to be a registered trademark.  Still, the WWE could file a “Letter of Protest” noting that it would be confused with the WWE’s use of the mark.  We recently saw this used in order to defeat the initial application of Tom Brady. The WWE could file a Notice of Opposition preventing Flair from obtaining the mark.

Then again, Flair could make a showing that he’s been using the mark longer than the WWE and is entitled to the mark.  Flair told TMZ Sports that the reason why the WWE has not filed the lawsuit is because he’s been using it for a while.  Whether or not this is true, one has to wonder why the WWE had not filed a trademark for The Man. Even if they believed it would be denied for one reason or another, its branding and intellectual property division would have pushed for it.

The talk of trademarking catch phrases or “gimmicks” is an important detail in branding.  While The Man may seem generic to many, it holds some weight due to the popularity of Flair and his use of the tag line.  In recent weeks, we may have seen some go overboard (e.g., “Taco Tuesday” or “the”) in registering marks, but we have seen companies and people being cautious about protecting themselves from lawsuits.

“Tom Terrific” denied by USPTO

When should one file a trademark to protect their right to use it?  There have been several high-profile Tom Brady was criticized for his application to file “Tom Terrific.”

I addressed this issue on sports personality Mike Meltser’s podcast.  The New England Patriot’s quarterback filed for the trademark as a way to protect his legal interests.  He filed an intent-to-use application for T-shirts and shirts, collectible trading cards, sports trading cards and printed photographs.  However, New York fans were not having it.  A letter of protest was filed by a New York-based attorney and former USPTO examiner.

The Letter of Protest, which can be filed by a nonparty, brought to the attorney examiner’s attention that the application’s mark was similar to famous Met’s pitcher Tom Seaver’s nickname.  The Letter of Protest included a multitude of examples of media referring to Seaver as “Tom Terrific.”

Letter of Protest re “… by Jason Cruz on Scribd

The Mets also chimed in:

The USPTO issued a nonfinal Office Action refusing registration for the False Connection with Tom Seaver.  Also, it was refused because it was the name of a living individual.

It’s noteworthy to bring up that Brady had stopped the trademark application of Lacrosse player Trevor Baptiste for the registration of TB9 due to a likelihood of confusion with Brady’s TB12 trademark.  So, the initial refusal to trademark “Tom Terrific” seems ironic.

If not for the Letter of Protest, one might wonder if the mark would go through the process of being published for opposition.  Certainly, if published for opposition there would have been someone to have stepped up to object to the registration.  Of course, the examiner could have discovered the name’s tie-in with the Met’s pitcher themselves.  But its interesting that the Letter of Protest was filed to prevent Brady’s application from going forward.  It goes to show you that the Boston-New York rivalry is deep.

But with filing trademarks, Brady’s attempt to register “Tom Terrific” as valid reasons.  He indicated that he wanted to insulate himself from being sued in the oft-hand case that he were to use it.

A couple things on the denial.  Brady could file a response to the Office Action in which he could plead his case for registering the lawsuit.  However, he’s expressed regret in filing for the application.  Also, a maybe most importantly.  Tom Seaver’s estate, nor the Mets or Reds (the two teams for which his playing career is synonymous) have filed a trademark with the USPTO.  Therefore, Brady could still utilize the name barring any mark application with the USPTO and/or state level.

 

Nike strikes back against Kawhi logo lawsuit

Nike has filed counterclaims against Los Angeles Clippers’ Kawhi Leonard arising out of his claims that the company stole his logo that he wished to use with his current shoe sponsor, New Balance.

Leonard filed a lawsuit last month claiming that Nike had filed a Copyright based on a logo he claims to have made.  Nike argues otherwise.

In a recent court filing, Nike has filed counterclaims against Leonard stating that the company owns the copyright, he is infringing on the copyright and requesting that the Copyright office cancel Leonard’s design.  Nike suggests that he “knew that he did not author the Claw Design, and specifically knew of the Contract’s intellectual property ownership provision. “

The counterclaims cite an interview Leonard did in 2014 in which he stated that he had a ‘rough draft’ of his logo but Jordan Brand refined it and he gave them the ‘credit’ because he was no artist. They also claim that Leonard is attempting to ‘re-write history’ with his claims of creating the design.

The crux of the issue is that Leonard wanted to use the Claw Design for use with his new apparel sponsor, New Balance.  The company capitalized on Leonard’s success this past year when he helped the Toronto Raptors win an NBA Championship.  Since then, Leonard has moved on to the Los Angeles in a blockbuster shift of power in the league as he went to the Clippers along with Paul George.  With his move to Los Angeles, the hub of everything, the marketing for Leonard would be vital assuming that his representatives would want to monetize the situation.

As one might have expected there are two sides to a story and according to Nike, Leonard’s design was not stolen.  In fact, per Nike, the company enhanced a ‘rough draft’ of the drawing.  Can Leonard claim that the idea was originally his built upon by Nike?  Likely, but that does not provide a legal basis for ownership of the claw design.  Leonard may claim that the ‘rough draft’ drawing that Nike has produced was not final and he provided input which could be an argument to the counterclaims.

Once again, this is another reminder that contractual clauses within contracts should be detailed.

Kawhi Leonard files lawsuit against Nike over ownership of “Klaw” logo

Kawhi Leonard has filed a lawsuit against Nike for the use of his “Klaw” logo.  The Toronto Raptor’s forward argues that the company ‘falsely claimed’ that it created the logo in a copyright registration.

Leonard, who is now a New Balance-sponsored athlete, claims that he came up with the “Klaw” logo and gave Nike permission to use the logo when he was a Nike-sponsored athlete.  The copyright registration filed by Nike was done without his consent according to the Leonard’s lawsuit which was filed in California federal court.

In the lawsuit, Leonard alleges that he had contemplated the logo since college and created a drawing of a logo in December 2011/January 2012.  Leonard signed a “Men’s Pro Basketball Contract” with Nike in October 2011.

Nike approached Leonard about a personal logo.  While the Beaverton, Oregon-based company provided proposals, Leonard claims to have rejected them.  While Leonard agreed upon a logo, he claims that he retained ownership of that logo.  In May 2017, Nike registered with the U.S. Copyright Office, the logo accepted by Leonard.

Leonard applied for a trademark based on his logo in November 2017.  Now a New Balance athlete, intends to use the “Klaw” logo on sportswear but Nike claims that it owns the mark and has registered the Copyright.

Leonard is seeking a Declaratory Judgment from the Court which would state that Leonard is the true owner of the logo.

This case involves the intersection of Copyright law and Trademark law.  Copyrights are original creative works while Trademarks are recognizable signs, designs or expressions for a good or service.  A logo, like the one fought over here, can be both a copyright and trademark.  While distinguishable, Leonard claims he created the logo that he used with Nike.  It can also be used for a trademark as Leonard intends to use the mark on branded clothing.

The case is notable since there did not seem to be a contract regarding who owns the rights to intellectual property used while marketing Leonard.  This seems that it would have outlined ownership rights of things like this.  Nike claims that it owns the copyright and will likely argue that it assisted Leoanrd with the logo and thus retained ownership since he was under contract at the time.

Obviously, with Leonard’s great run with the Raptors this year, he is looking to capitalize with his new company, New Balance.   Also, the Los Angeles Clippers, which hopes to land Leonard after this season, hoped to buy the logo from Nike.

The lawsuit shows the need for contracts to be detailed enough to contemplate things like intellectual property rights.  It also shows the intersection of copyright and trademark law and its uses.