The USPTO recently refused legendary quarterback Tom Brady’s application to register the mark TOM TERRIFIC. If you’re like me, you’re wondering why Tom Brady would want to register such a trademark. Well, according to Brady, he wanted to obtain the rights to the mark to prevent people from referring to him by that nickname. But that response isn’t satisfactory for those of us who know about trademark law for a couple of reasons.
Continue Reading The USPTO Denies Tom Brady’s Application to Register TOM TERRIFIC

If you’re a fan of intellectual propertytransparent or the National Football League, you may have heard about last July’s ruling in the United States District Court for the Eastern District of Virginia. There, Judge Gerald Bruce Lee affirmed the Trademark Trial and Appeal Board’s ruling that the team’s moniker is offensive to Native Americans, and therefore ineligible for trademark protection under the Lanham Act, which prohibits registration of disparaging marks. This battle was fought over more than 20 years. The effect is that the Redskins can continue to use the mark, but they do not have the trademark protections provided by the Lanham Act. The Redskins, clearly unhappy with this result, have appealed the matter to the Fourth Circuit of Appeal. That matter is currently pending and the opening briefs were recently filed.

In its opening brief, the Redskins immediately attacked the District Court’s ruling that the Redskins’ registration is not entitled to First Amendment scrutiny because registered trademarks are “government speech” and the registration is a government subsidy “program.” Counsel for the Redskins, Quinn Emanuel and Arnold & Porter, argue that this notion is disturbing. Specifically the opening brief states that:

Continue Reading The Federal Circuit Breathes Life into the Redskins’ Appeal

transparentJust over a month ago I wrote about the Davis v. Electronic Arts matter that was pending before the Ninth Circuit Court of Appeal.  Specifically, I opined that the matter was ripe for Supreme Court review in light of the circuit split that is developing with respect to the misappropriation of likeness in video games.  In my last blog, I explained that a number of legal scholars, and myself, believed that Electronic Arts had absolutely no chance of prevailing in Davis in light of an identical case that Electronic Arts lost at the trial level and on appeal (Keller v. Electronic Arts) wherein NCAA college football players brought a similar claim for the use of their likeness in the Electronic Arts video game franchise NCAA Football.  The matter was submitted to the Ninth Circuit on September 11, 2014, and the Ninth Circuit issued its opinion on January 6, 2015.

In the Davis v. Electronic Arts opinion (Case No. 12-15737), the Ninth Circuit rejected the legal razzle dazzle (pardon the football expression) raised by Electronic Arts and upheld the denial of Electronic Arts’ motion to strike the case as a strategic lawsuit against public participation (SLAPP).  Specifically, the Ninth Circuit rejected the argument that the use of the former players’ likeness was protected under the First Amendment as “incidental use.”  The Court disagreed with Electronic Arts’ characterization of the role of the former players’ likeness in the video game because it was central to Electronic Arts’ main commercial purpose: to create a realistic virtual simulation of football games involving current and former NFL teams.  Electronic Arts acknowledged that the likeness of the current NFL players carries substantial commercial value and failed to offer a meaningful distinction with respect to the former NFL players.  Instead, it argued that there are thousands of players in the video game and accordingly, any individual player’s likeness has only “de minimis commercial value.”  However, the Court refused to accept this highly technical argument and instead found “no basis for such a sweeping statement.”
Continue Reading Davis: Electronic Arts Gets a New Set of Downs and Still Can’t Score