Don’t start making counterfeit Washington Redskins merchandise just yet

In recent years, the campaign against the team’s offensive name has gained considerable momentum, with even Senate Majority Leader Harry Reid publicly speaking out against it:

Despite this, I still think the team should change its name.  And a recent “landmark” decision by the U.S. Trademark Trial and Appeal Board, cancelling trademark registration of the “Redskins” name for its innate offensiveness, is being held up as a major step forward.

Tim Lince at World Trademark Review, however, says the decision is not nearly as big a deal as it seems.  The ruling is stayed pending appeal, and in any event, even if it were upheld the team would still have recourse against unauthorized producers of team merchandise:

Under the assumption that the REDSKINS term is now under no legal protection, hundreds of people on websites, social media and forums are saying, presumably mostly as a joke (but you never know!), that they will now start making unofficial REDSKINS merchandise in the wake of the decision. William McGeveran, associate professor at the University of Minnesota Law School, says he “wouldn’t expect the [trademark] team to police its marks any less aggressively as a result of this decision”, but affirms that “news reports suggesting that counterfeit Redskins jackets will now be legal are just plain wrong”.

WTR covered the original cancellation of the REDSKINS trademarks and subsequent overturning of the decision in 2003 and wrote about the case being dismissed in 2009. As Tim Kelly, partner at Fitzpatrick, Cella, Harper & Scinto LLP, notes, “the decision that the term REDSKINS was disparaging to a ‘substantial composite’ of Native Americans at the time the trademarks were registered is based on substantially the same evidence that was viewed as insufficient in the appeal of a prior proceeding”. Given this, the Washington Redskins’ lawyer Bob Raskopf’s gave a defiant response to yesterday’s decision: “We’ve seen this story before. And just like last time, yesterday’s ruling will have no effect at all on the team’s ownership of and right to use the Redskins name and logo. We are confident we will prevail once again.”

For now, the REDSKINS trademark registrations that are the subject of the cancellation proceeding will not be cancelled until the appeals process is exhausted. Kelly adds: “Importantly, the TTAB does not have jurisdiction to prevent the use of the marks it ordered cancelled. As such, the petitioners in the cancellation proceeding will need to seek a court order to prevent the NFL from using the name. An interesting question will be how much deference the courts will give to the decision of the board, an issue that the Supreme Court is already considering taking on, albeit in the context of a likelihood of confusion claim.”

[…]

Sommers notes: “Even if a court upholds the cancellation of the registration on appeal, the team will still have so-called ‘common law’ trademark rights arising from its long and consistent commercial use of the name. And those rights are very strong. They include the ability to stop other people from using the mark in a way that appears to be authorised by the team.” However, with media reports declaring that the trademarks are cancelled, readers could interpret that as a free-for-all to capitalise on the REDSKINS brand. Job one for the team’s trademark department, then, is managing that information flow. After all, any spike in infringing activities will mean that the trademark team’s policing burden gets heavier.

Anyone else think it’s no accident that the anti-“Redskins” campaign picked up steam after litigious bully (and bad free-agent picker) Dan Snyder bought the franchise?

Penn State is going to pay

Jerry Sandusky has been convicted, and I hope science comes up with a way to keep him alive for the 400+ years’ incarceration to which he will likely be sentenced.  Now, the civil suits begin:

Now, attention will turn to compensating the victims.

With $4.6 billion in operating revenue reported for the last fiscal year and an endowment topping $1.8 billion, Penn State is a flush civil litigation target for Sandusky’s victims.

At least one unidentified male has already filed a lawsuit against the university for failing to protect him from Sandusky. He is initially seeking more than $50,000 in damages, the standard amount in Pennsylvania courts to trigger a jury trial.

To hold the school liable, an victim would have to show that Penn State – through its employees – owed the boys a duty of care and that they failed to uphold that duty.

Legal experts said they expect more civil suits to be filed soon against Penn State and media reports have suggested that the total number of victims could be closer to 20. Victims of sexual abuse often wait until a criminal proceeding has concluded to initiate civil litigation.

Following Friday’s verdict, Penn State issued a statement inviting victims to participate in discussions toward a resolution of their claims against the university.

“The university plans to invite victims of Mr. Sandusky’s abuse to participate in a program to facilitate the resolution of claims against the university arising out of Mr. Sandusky’s conduct,” the statement said.

“The purpose of the program is simple – the university wants to provide a forum where the university can privately, expeditiously and fairly address the victims’ concerns and compensate them for claims relating to the university.”

Penn State had previously declined to comment for this story.

The situation Penn State faces has drawn comparisons to the sexual abuse allegations that have dogged the Roman Catholic Church and prompted calls for the university to set up a victims’ compensation fund. So far, Penn State has not established such a fund.

[…]

It’s impossible to know what the cost to Penn State ultimately might be. There is no formula for damages in sexual abuse cases and there are no caps on damages. Lawyers who specialize in sex abuse cases say damages can vary widely from case to case, depending on the harm done to the victim.

Last week, a jury in Northern California awarded $7 million in compensatory damages and an additional $21 million in punitive damages to a woman who claimed the Jehovah’s Witnesses allowed one of its members to sexually abuse her when she was a child. Lawyers for the plaintiff say they believe the award is the largest ordered in the United States in a religious child abuse case for a single victim.

Another variable that could determine Penn State’s liability is what portion of blame a jury assigns to it. If a verdict is returned in a civil case brought by one of Sandusky’s victims, a jury may be asked to determine how much of a judgment Penn State should be required to pay.

Michael Rosenberg, writing for SI.com, describes some of the many missed opportunities to stop this predator before he could destroy any more lives:

Victim 1’s wrestling coach said he saw Sandusky and the victim “laying together side to side” in a seemingly inappropriate position in the wrestling room. “They were both startled that I came in,” the coach said, but he evidently didn’t think he’d seen enough to do anything.

McQueary testified that he witnessed Sandusky raping a boy — Victim 2, who has still not been identified — in a shower in the Penn State locker room. That may be the single most indefensible part of Penn State’s actions. Nobody even tried to contact the kid’s parents.

In a heartfelt piece in The Washington Post, former Penn State linebacker LaVar Arrington wrote that he remembered Victim 4 as a child.

“I knew he looked up to me and was a big fan, and I made a point of stopping to talk with him,” Arrington wrote. “I’d ask him the usual questions: ‘How are you?’ ‘How’s school?’ He always seemed mad or kind of distant. I remember distinctly asking him: “Why are you always walking around all mad, like a tough guy?'”

Arrington’s regret is real and his candor is admirable. But surely, dozens of people knew Victim 4 better than Arrington did. They must have seen many more signs than Arrington.

Victim 6 told his mother about an attack, and she told authorities, and this led to Sandusky’s infamous comment: “I wish I could ask for forgiveness … I wish I were dead.” A janitor supposedly saw Sandusky shower with Victim 8.

Victim 9 told his mother that Sandusky was “touchy-feely.” He sometimes said he didn’t want to visit Sandusky, and his mother testified that “I’d just make him go anyways.” His underwear kept disappearing; he said he had accidents and threw them out, and his mother didn’t really buy that, but she convinced herself it must be true.

[…]

We can all sit here and loudly proclaim that we would have done more than McQueary, more than Paterno, or more than Schultz, Spanier and Curley. I hope that is true. But most of us probably won’t ever be in McQueary’s position.

We may, however, be in the same spot as these other folks, hearing a snippet here and a detail there, just enough to make us wonder. I hope when that happens, we do more than just wonder. I hope we ask questions and keep asking them. There was so much gruesome testimony and public talk about the body parts of an aging man and young boys in this trial. But it all could have been stopped years ago by one good set of vocal cords.

If you see something, say something.

How does Brian Banks get his life back?

The most sickening story you will read today:

A former high school football star whose dreams of a pro career were shattered by a rape conviction burst into tears Thursday as a judge threw out the charge that sent him to prison for more than five years.

Brian Banks, now 26, pleaded no contest 10 years ago on the advice of his lawyer after a childhood friend falsely accused him of attacking her on their high school campus.

In a strange turn of events, the woman, Wanetta Gibson, friended him on Facebook when he got out of prison.

During an initial meeting with him, she said she had lied; there had been no kidnap and no rape and she offered to help him clear his record, court records state.

But she refused to repeat the story to prosecutors because she feared she would have to return a $1.5 million payment from a civil suit brought by her mother against Long Beach schools.

[…]

It was uncertain whether Gibson will have to return the money and unlikely she would be prosecuted for making the false accusation so long ago, when she was 15.

Gibson did not attend the hearing and she could not be reached for comment. Prosecutors and defense attorneys said they were unable to find her recently.

Banks, once a star middle linebacker at Long Beach Polytechnic High School, had attracted the interest of such college football powerhouses as the University of Southern California, Ohio State University and the University of Michigan, according to the website Rivals.com, which tracks the recruiting of high school football and basketball players.

Banks said he had verbally agreed to attend USC on a scholarship when he was arrested.

He still hopes to play professional football and has been working out regularly. His attorney Justin Brooks appealed to NFL teams to give him a chance.

I’ve had several clients with prior criminal records, who tell me they were innocent but plead guilty anyway, because they didn’t want to go through a trial.  Not one hasn’t regretted it.

 

The latest professional athlete unable to make his child support payments is…[drum roll]…Warren Sapp:

Former NFL star Warren Sapp owes more than $6.7 million to creditors and back child support and alimony, according to a Chapter 7 bankruptcy filing in South Florida.

Sapp’s $6.45 million in assets includes 240 pairs of Jordan athletic shoes worth almost $6,500, a $2,250 watch and a lion skin rug worth $1,200. He also reported losing his 2002 Super Bowl ring with the Bucs and his 1991 national championship ring from the University of Miami.

[…]

Sapp’s average monthly income is $115,881, according to the filings, and includes $45,000 for a final contract payment with Showtime, $48,000 for an appearance with CCA Sports and $18,675 as an advance for a book deal. His contract with the NFL Network ends in August, the filings show, and it was unknown if the contract will be renewed.

Related: “Why athletes go broke: Too much spending, little liquidity.”

The end of football?

It could happen, according to economists Tyer Cowen and Kevin Grier:

By now we’re all familiar with the growing phenomenon of head injuries and cognitive problems among football players, even at the high school level. In 2009, Malcolm Gladwell asked whether football might someday come to an end, a concern seconded recently by Jonah Lehrer.

Before you say that football is far too big to ever disappear, consider the history: If you look at the stocks in the Fortune 500 from 1983, for example, 40 percent of those companies no longer exist. The original version of Napster no longer exists, largely because of lawsuits. No matter how well a business matches economic conditions at one point in time, it’s not a lock to be a leader in the future, and that is true for the NFL too. Sports are not immune to these pressures. In the first half of the 20th century, the three big sports were baseball, boxing, and horse racing, and today only one of those is still a marquee attraction.

The most plausible route to the death of football starts with liability suits.1 Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away. More and more modern parents will keep their kids out of playing football, and there tends to be a “contagion effect” with such decisions; once some parents have second thoughts, many others follow suit. We have seen such domino effects with the risks of smoking or driving without seatbelts, two unsafe practices that were common in the 1960s but are much rarer today. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.

It may not matter that the losses from these lawsuits are much smaller than the total revenue from the sport as a whole. As our broader health care sector indicates (try buying private insurance when you have a history of cancer treatment), insurers don’t like to go where they know they will take a beating. That means just about everyone could be exposed to fear of legal action.

Via Ilya Somin at The Volokh Conspiracy, who responds that the NFL and other football leagues could successfully push for tort-reform laws protecting the sport from legal action.  Maybe, but that wouldn’t solve the insurance problem – not to mention a gradual decline in the number of young people being allowed to play the game.  (Football is my favorite sport, but the more we learn about head trauma, the more nervous I become about my own sons possibly taking part.)

If history is any guide, the NFL will go out of business just as the Cleveland Browns are about to win the Super Bowl.

T.O. wants to pay less

The 2011 NFL season started without the notorious Terrell Owens on a roster, so he’s applying to reduce his child support payments:

A representative for Owens spoke to TMZ about the importance of the 37-year-old football free agent wide receiver getting his payments lowered. According to Newsone, Owens’ was ordered to pay $5,000 monthly.

“His child support payments should mirror his income today and not be based on his income from over four years ago,” the source said.

However, Owens failed to show up at his child support hearing in Northern California on Oct. 24. While TMZ reports that the veteran football star attempted to change his court appointment, representatives for the mother of his child.

The football star has made headlines in the past for his failure to make timely child support payments. In June, Newsone reported that the mother filed court papers seeking to hold Owens in contempt for failure to pay child support.

T.O. is not exactly a sympathetic character, but he does have a point.  If a child support payor loses his job, that is usually a material change of circumstances for which his support payments should be reduced accordingly.

If his support arrears arise from his playing days, however, he’ll have a hard time convincing the court that the arrears should be reduced or forgiven.  And the recipient can argue that Owens is still capable of earning some money on reality television, or in a lesser football league:

Suffice it to say, this is not quite what Terrell Owens had in mind when he had a televised workout Tuesday in an effort to show he was ready for a comeback.

The Arena Football League’s Chicago Rush became the first team to offer Owens a contract — a “standard player agreement,” which comes with a salary of $400 per week.

Updates

Further to my post from earlier this week, about Japan possibly signing the Hague Convention on International Child Abduction, a recent court decision has led to calls for India to sign on as well:

It is reported in India that demands have been raised with the government for it to accede to the Hague Convention on the Civil Aspects of International Child Abduction in order to protect the rights of non-resident Indians. The calls follow a Supreme Court judgment which has affirmed the jurisdiction of Indian courts to deal with disputes of children’s custody even if they are foreign citizens.

The Supreme Court ruled that simply because a foreign court had made an order, it did not mean that Indian courts should put off deciding on the issue. It is said that the judgment has far-reaching implications for Indians living abroad.

The Supreme Court said that the interest and welfare of the child was of primary concern and required a competent court in India to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. [via Family Lore News]

Meanwhile, in the world of Formula One racing, the great Lotus-Renault vs. Lotus-Renault court battle has been decided in favor of Lotus-Renault.

The NFL lockout explained

The BlackBook Legal Blog explains the NFL labour situation more succinctly than anything else I’ve seen.  (via Instapundit)

Related (and further to this post): at the Huffington Post, “Celebrity Divorce Attorney” Doug Kepanis explains how the lockout has affected some players’ child support and access visits.  There are lessons here for anyone who suddenly finds him- or herself without a regular income:

When an NFL player is ordered to pay child support during his tenure as an active player, such support is commensurate with his high earner status. (The NFL league minimum salary in 2010 was $310,000.00 per annum). However, the average NFL player salary in 2010 hovers around the $1,000,000.00 per annum mark. During a lockout, however, there is no salary. This means that all of those child support orders or agreements, entered into while the NFL athlete was earning a considerable salary, become ripe for modification.

In most states, child support orders may be modified upon a showing of a “change in circumstances” or a “substantial change in circumstances”.  [“Material change of circumstances” in Nova Scotia – DJP]  When the salary of an NFL player, an average of almost $1,000,000.00 is reduced to zero through no fault of the player himself, as is the case of the lockout, this will surely qualify as a change in circumstances of substantial change in circumstances in almost every state.

There have been recent instances of players’ support check bouncing. Without a salary coming in, unless you are one of the superstar players in the NFL who get paid handsomely for endorsements, your support checks will soon bounce as well. Whether it is a temporary reduction in support or a more long-term reduction, when you have no income, you must seek to reduce your child support payments or risk losing your license, passport, or end up behind bars.

Moreover, if there is no NFL season, players may also seek to have their visitation with their child(ren) modified so that, while they are not traveling for six to eight months, they can enjoy watching their child(ren) grow up and be a more active parent in their lives.

Not all of these types of modifications require a trial in the courts. The parties can voluntarily agree to modify their child support and/or visitation agreements, execute them, and file them with the court. However, it must be stressed that each State has different child support and visitation laws and an attorney expert in this area of the law should be sought out for legal advice.

Considering how much money even the lowest-paid NFL players earn, I doubt a locked-out player would be ordered to pay no child support at all.  Applying Canadian law, a lower level of income (and therefore support) would be imputed until the labour dispute is over, at which point the matter could be reviewed once again.

Dueling Lotuses

Casual viewers of last weekend’s Australian Grand Prix may have wondered why there were two competing race teams, both running cars powered by Renault engines, named “Lotus.”   Formula One reporter Joe Saward has a blog post, far too long to excerpt, which explains the whole mess.

Long story short: the Lotus car company and the Lotus F1 team have been completely separate entities since 1990, when Colin Chapman’s descendants sold the race team, which went bankrupt in 1994, at which time the “Team Lotus” name was purchased by David Hunt.  A Malaysian-owned race team entered F1 in 2010 and made a deal with the Lotus car company (Group Lotus, now owned by another Malaysian company, Proton) to use the historic name.  Group Lotus withdrew its licence at the end of the season, and subsequently made arrangements to sponsor the more successful Renault team.

But then the team that was known as Lotus, which stood to lose millions in TV revenues if it changed its name, made a deal with Hunt to use the “Team Lotus” name. Oh, yeah, they’d already made arrangements to use Renault engines for 2011, and both teams also planned to run cars in black and gold livery, like the legendary John Player Special-sponsored Lotus F1 cars of the 1970s and 1980s, before the newer team backed down.

Everybody got that?  The matter is now before the High Court in London, and just to make things even more confusing, Hunt now says Team Lotus is breaching its contract, and Team Lotus may respond by suing him for defamation  Too bad most Formula One races aren’t this interesting.

The late, great Ayrton Senna drives a Lotus to his first F1 victory at Estoril, Portugal, in 1985: