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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.

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.

Dr. Dre loses trademark battle with Doctor Drai

Andre Young, better known as hip-hop star Dr. Dre of NWA fame and then the mastermind of Beats By Dre Headphones lost his opposition to the registration application of a gynecologist, dubbed, Doctor Drai.

(via Wikipedia)

Draion M. Burch is a board certified osteopathic doctor and OB/GYN that goes by the nickname, “Drai.”  Dr. Drai provides medical services and speaking services on women’s health and transgender health.  He’s authored books and made media appearances using the Dr. Drai nickname.  The hip-hop mogul filed the opposition based on likelihood of confusion based on the names as Dr. Drai wanted to sell audio books and seminars and Dr. Dre believed that this would be confusing to consumers since his music is normally found via audio sources.

The USPTO decided that despite the similarities in name, the two marks were different.  Dr. Dre failed to show that a connection would be presumed in the mind of the consuming public when Dr. Drai marks are used in connection with its applied-for goods and services.  Based on the physician’s typical fee for speaking engagements, the consumer would exercise a “higher degree of care” than a casual purchaser.  In addition, the physician argued that because Andre Young is not an actual medical doctor nor is he qualified to provide any type of medical services or sell products, there would be no confusion with customers.

While there are entities that have filed marks with the intent of having broad protection of their brand, here’s an example of a celebrity mark holder that lost in his attempts to protect a name that is similar in nature.  According to the opinion, the two marks have no bearing with one another and it is unlikely that consumers would be confused.  In some instances, the USPTO defers to the mark holders, but we see here that the USPTO sides with the applicant/physician in rationalizing that consumers would take a “higher degree of care” due to the physician’s specific audience and pricey appearance fees.  This would appear to be a factual determination that was successfully argued by the applicant.