We’ve discussed the intersection of sports and law a number of times on this blog, particularly in the context of trademarks and other intellectual property, and today our topic is Dallas Cowboys Wide Receiver Dez Bryant, his “ThrowUpTheX” brand, and his attempt at trademarking a hashtag, #throwupthex.

For context, Dez Bryant is famous for “throwing up the X” after scoring touchdowns, which is when he puts his arms up in the air in the shape of an “X.” Dez has been seeking to capitalize on his famous move by creating a brand called “ThrowUpTheX,” which brand’s website can be seen here. While the “lifestyle brand” is relatively new, Dez has been using the hashtag #throwupthex for quite some time. In an effort to make sure he controls the use of his slogan on social media, Dez is seeking a trademark for “#throwupthex.”

To read the remainder of the article originally published on inVigor Law Blog, click here.

The United States Patent and Trademark Office has cancelled six federal trademark registrations for the name of the Washington Redskins, ruling that the name is “disparaging to Native Americans” and thus cannot receive trademark protection under federal law which prohibits the protection of offensive or disparaging language.

“We decide, based on the evidence properly before us, that these registrations must be cancelled because they were disparaging to Native Americans at the respective times they were registered,” the Trademark Trial and Appeal board wrote in its opinion.

“The Trademark Trial and Appeal Board agreed with our clients that the team’s name and trademarks disparage Native Americans. The Board ruled that the Trademark Office should never have registered these trademarks in the first place,” Jesse Witten, the plaintiffs’ lead attorney, said in a press release. “We presented a wide variety of evidence – including dictionary definitions and other reference works, newspaper clippings, movie clips, scholarly articles, expert linguist testimony, and evidence of the historic opposition by Native American groups – to demonstrate that the word ‘redskin’ is an ethnic slur.”

“I am extremely happy that the [Board] ruled in our favor,” Blackhorse said in a statement. “It is a great victory for Native Americans and for all Americans. We filed our petition eight years ago and it has been a tough battle ever since. I hope this ruling brings us a step closer to that inevitable day when the name of the Washington football team will be changed. The team’s name is racist and derogatory. I’ve said it before and I will say it again – if people wouldn’t dare call a Native American a ‘redskin’ because they know it is offensive, how can an NFL football team have this name?”

The team will appeal the case, according to a statement from its attorney, and it will be able to keep its trademark protection during appeal. Further, losing the trademark would not force the team to change its name — as the PTO pointed out in its fact sheet about the case, the Trial and Appeal Board “does not have jurisdiction in a cancellation proceeding to require that a party cease use of a mark, but only to determine whether a mark may continue to be registered.”

The media has completely mistrued the ruling in this case and has been opining that the general public will now be able to produce and sell its own merchandise. This couldn’t be further from the truth and while the general public may try and do so, they have no legal basis for doing it. While the Redskins might lose their federal trademark rights (depending on the success of the appeal), they still have common law trademark rights to the name and logo.  Common law rights arise from actual use of a mark in commerce and may allow the common law user to successfully challenge a registration or application. Since the Redkins have been using the name and logo in commerce since the franchise began in 1933, they have held common law trademark rights ever since and thus, have a strong claim of ownership in that name and logo. For that reason, if the general public decides to begin making Redskins merchandise based on yesterday’s ruling, the Redskins will still be able to enforce their rights and sue the people infringing upon them. They will however, lose certain rights available to those with federal protection such as: ability to sue for statutory damages in federal court, ability to use the (r) symbol (which is irrelevant since everyone knows whose mark it is), and US Customs and Border protection.

While the ruling today was a blow to the Washington Redskins, the long term effect is minimal compared to what the media has portrayed after taking a closer look at the legal ramifications.

If you’re interested in learning more about Seattle Sports Law, contact a Seattle Sports Attorney or Seattle Sports Agent.

Do you want to make the NFL season even more intriguing next year? Next week you can by purchasing shares of 49ers tight end, Vernon Davis, for $10/share.  As discussed in detail on this blog before, a company called Fantex has announced that it will be offering shares of certain high profile athletes and Vernon Davis will be the first athlete up for sale. Davis has two years left on his current contract in which he will make just over $10M in cash with cap numbers of $7.3M and $7M in 2014 and 2015, respectively.

If you are interested in learning more about Seattle Sports Law, contact a  Seattle Sports Attorney or Seattle Sports Agent.

 

Seattle Sports AgentThe New Orleans Saints are expected to use their franchise tag on star tight end Jimmy Graham before Monday’s deadline, a league source told ESPN NFL Insider Adam Schefter. This begs the question: At what position will he be franchised?

The first position that likely comes to mind is tight end, which makes sense considering he was drafted as a tight end, looks like a tight end, and is considered the best tight end in the league. However, Graham’s agent has a differing perspective and for good reason. The franchise tag for tight ends is expected to be around $6.7 million this year while the franchise tag for wide receivers is expected to be $11.5 million, and thus, the battle begins as to what position Graham should be classified under.

In these situations both parties and the NFL arbitrator will look to the  NFL Collective Bargaining Agreement (“CBA”) for guidance. Article 10, Section 2(a)(i) of the CBA states, “The Nonexclusive Franchise Tender shall be a one year NFL Player Contract for (A) the average of the five largest Prior Year Salaries for players at the position (within the categories set forth in Section 7(a) below) at which the Franchise Player participated in the most plays during the prior League Year” (emphasis added).

Graham and his agent, Jimmy Sexton, are expected to file a grievance through the NFL Players’ Association. Their main argument in asking that Graham be considered a wide receiver is that he lined up out wide or in the slot for 67 percent of his snaps last year. Sounds like a wide receiver, right? The Saints, on the other hand, are adamant that Graham is a tight end. As general manager Mickey Loomis said recently, “Isn’t that what we drafted him as? Isn’t that what he made the Pro Bowl as? That’s what we see him as, a tight end.”

It is an interesting debate and one that will set precedent for future franchise tag disputes. Does the position a player lines up at matter more than his defined “position” on the roster? I would assume that the Saints will also argue that the tight end position has dramatically changed in the last few years and tight ends simply split out wide as receiver more often than they used to. The outcome of this matter will also have significant implications on negotiations for a long term deal for Graham because the franchise tag will set the rate at which the Saints could keep Graham. For example, if the franchise tag is $11.5 million this year, and the Saints wanted to tag Graham again in 2015, he would be paid $13.8 million (120% of his 2014 salary). On the other hand, if Graham was tagged as a tight end, his salary would be roughly $6.7 million this year, and if tagged again in 2015, $8.04 million.  These tight end figures would be much easier for the Saints to swallow and would allow them to spend less in a long term deal. On the other hand, if Graham is found to be a wide receiver, this would create leverage for his agent to negotiate a more lucrative long term contract.

If you have any questions or comments about the situation, I’d love to hear them in the comment section below.

For more information on Seattle Sports Law, consider contacting a Seattle Sports Attorney or Seattle Sports Agent.

Photo Credit: http://www.flickr.com/photos/juggernautco/

Athletes attempt to UnionizeFor the first time in the history of college sports, athletes are seeking to be represented by a labor union, taking formal steps last week to begin the process of being recognized as employees.

To succeed in the formation of a union, the players must convince the National Labor Relations Board that they are employees, which is no easy task. In addition to the numerous courts that have ruled that injured athletes are not eligible for medical benefits automatically available to employees, the players will face assertions from Northwestern and the NCAA that they are “student-athletes,” a category invented to avoid any suggestion of employment. Their scholarships are “grants-in-aid,” not salaries or wages.

A full legal analysis by ESPN’s, Lester Munson, can be read here.

If you have further interest in Seattle Sports Law, contact a Seattle Sports Attorney or Seattle Sports Agent.

Bb86WAdCAAA1UzJAthletes and sports teams seeking trademarks is not a new topic to this blog. In the past, we’ve discussed the Seattle Supersonics trademark issues and Florida Gulf Coast’s “Dunk City” and today, since I’m a Seattle sports fan and the Hawks are playing for the NFC Championship this weekend, I figured it would be timely to discuss Marshawn Lynch’s “Beast Mode” trademarks.

ESPN Business reporter, Darren Rovell, came out with an article today discussing the financial success of the “Beast Mode” trademark via a number of licensing deals and reported that Marshawn made “in the mid six figures” in 2013. The report goes on to state that for those companies who Lynch chooses to work with — he rejects about five proposals a month — there’s a typical 20 percent sales royalty fee and that Lynch himself has to approve every design.

The University of South Carolina athletic department, supplement company MusclePharm and Deuce Watches all give him a cut of their “Beast Mode” business. So too did Aaron Rodgers‘ brother Luke whose company Pro Merch made 2,500 “Beast Mode” shirts to sell at a Target in Seattle. They sold out in three days, Hendrickson said. This week, Lynch gave Joe Montana‘s wife Jennifer the rights to sell “Beast Mode” necklaces on her website in exchange for a piece of each $124 sale.

Marshaw’s attorney, R. Gwen Peterson, has filed a number of trademarks for “Beast Mode” over the years. Below is a list of each trademark and a link to the USPTO’s website:

Beast Mode: For bracelets, headphones, athletic bags, and clothing filed on Sep 9, 2013.

Beast Mode: For sunglasses and watches registered on Nov 12, 2012.

Beast Mode: For mens and womens clothing registered on Dec 4, 2012.

Beast Mode: For t-shirts registered on July 7, 2009.

As discussed on this blog in the past, a trademark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.  In this case, Marshawn Lynch coined the phrase back in college and has continued to refer to his play on the field as “Beast Mode” throughout his career. Marshawn and his legal team were smart enough to protect the phrase early in his career to squelch others from trying to capitalize on Marshawn’s fame.

The best part of the story, however, is that all of the profits from the “Beast Mode” trademark are donated to Marshawn’s charity,the  Fam 1st Family Foundation.

For more information on Seattle Sports Law, contact a Seattle Sports Attorney or Seattle Sports Agent.

If you would like to obtain a state or federal trademark for your business, contact inVigor Law Group.

The 2013 season has now ended for 20 NFL teams and many of them have been busy signing players to reserve/futures contracts as they begin formulating their 2014 off-season roster. I have been asked a number of times recently what exactly these reserve/futures contracts are.

The 2014 NFL league season, when the league is considered open for business, does not begin until March 11th this year. Players signed between now and then are signed to these ‘reserve/futures’ deals because they are being signed for a season that has not officially begun. These types of contracts are solely for players who were not on any NFL team’s active roster when the previous season ended. If they were under contract, then they would remain so until the league’s new year starts. That means players who were on practice squads or prospective players who were out of football entirely at the end of a season can be signed to these contracts. True free agency does not begin until the league opens for business. Additionally, non-playoff teams have one week to sign their practice squad players to this type of contract and if they fail to do so, those players are free to sign with any team.

For more information on Seattle Sports law, contact a Seattle Sports Attorney or Seattle Sports Agent.