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By Sekou Campbell, Esq.
Intellectual property law—copyrights, patents, trademarks, and trade secrets—often attempts to balance culture and commerce. Few areas demonstrate the tension between those two vital national interests more profoundly than in sports trademark litigation. This and subsequent posts will discuss some of the contours of that tension by highlighting some recent cases and disputes.
Young, mostly New Orleans rappers refer to it; famous black author, Paul Laurence Dunbar, wrote it in the late nineteenth and early twentieth century; Harpo Marx has said it; Buckwheat of Our Gang fame has used it; countless unnamed minstrel performers sang it; and many Sundays, fans in the Superdome exalt their team with it. It is “Who Dat?” A phrase previously discussed on this blog.
The Eastern District Court of Louisiana’s April 3, 2012 summary judgment opinion analyzed whether “aesthetic functionality,” an unsettled doctrine, could support a defense to trademark infringement by stating:
one could argue that "Who Dat" is uniquely functional because it puts [the plaintiffs’] competitors at a non-trademark disadvantage not to be able to tap the demand for clothing bearing a phrase that could refer from anything to the Saints football team to old-time minstrel shows. There is legal scholarship that supports such a result on the pragmatic grounds that a mark like Who Dat is the product—and without any sponsorship implication, affording trademark protection would afford a monopoly over a product. However, this court is bound by precedent suggesting that a consumer's desire to express his identity with a mark does not make it functional. "Who Dat" does not make a t-shirt work better.
Who Dat Yat Chat, LLC v. Who Dat, Inc., 10-cv-1333 (E.D. La. April 3, 2012). While the Court recognized the cultural significance of the phrase, it did not effectively exclude it from the realm of words that could potentially gain trademark protection.
Perhaps other NFL franchises will follow the Saints’ lead and start adopting their regional phrases. I can see it now, the Metrodome rocking to “Yah Sure, Yah Betcha,” or thousands of Meadowlands fans chanting “Fuhgettaboutit!”
More updates on “Culture & Commerce” in the sports world will be forthcoming as new developments arise.
At my former firm, I was succeeded as office managing partner by someone who was a religious Christian. A wonderful guy, he started a prayer group on campus. The other partners were not pleased and nominated me to talk with him. My response was, "sure, make the Jewish kid do it." I was not happy but took it on. Went to visit with him privately and charged in with, "Do you remember that Jesus chased the money changers out of the temple? Well, this is where they came....and we have an understanding with them. We don't go into the temple, and religion does not come into the office." He took it in good humor and disbanded the group. Switch to Tim Tebow and the Jets. A very religious guy in the City of Babel. How long before someone claims a hostile work environment?
Has anyone been less aptly named? Before his recent meltdown with the Lakers, Meta World Peace nee Ron Artest had a history of outbreaks on the floor. Two questions: First, when does a blow become a criminal assault? Second, how much violence before a life ban? Recall that Michael Richardson was banned for life from the NBA for drug use. Recall that Rudy Tomjanovich sued the Lakers for assault when his career was ruined. Stay tuned.
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Please check out my colleague, Michael J. Kline, Esq.'s blog post: "Picard/Wilpons/Mets - Friday the 13th Becomes a Propitious Day for the Mets Ownership - Installment 74"
Check out this post by my colleague, Michael J. Kline, Esq.: "Picard/Wilpons/Mets - Friday the 13th Brings with it the Deadline for Resolving Open Issues in their Settlement - Installment 73"
I picked up the LA Times today and the banner headline was "It's Showtime in Los Angeles.” Mind you, this was on the day following argument before the U.S. Supreme Court on the most important case in a generation. This town has always been more about showbiz than policy. Not that it is not an important story. I grew up with every car antenna (old cars) bearing a Dodger ball icon. The team when lousy would still draw 3 million people. Beautiful venue, clean park, user friendly Dodger dogs. Predictably the two Times columnists split....Plascke hailing a new era and Simer cautiously counseling "not so fast", noting that Magic Johnson was a better b'ball player than talk show host. From here the matter must be approved by the bankruptcy court. Will not bet on the Dodgers but do bet that this one gets a quick approval for $2 billion reasons.
As discussed by Golfdigest.com, what is the Jeremy Lin story? Is it about racial assumptions (Black and Asian)? Is it about perseverance? Is it about the power of religion? Perhaps it is about assumptions. Supreme Court Justice Anton Scalia spoke about a year ago at American University Law School and was asked why he always picked Ivy Leaguers for law clerks. His response was basically that they were the best and the brightest and because he could. Perhaps he should recall that some of the constitutional "original intent" guys who he worships never had college educations. Or the musing of President Johnson when he took over as president. He was meeting with then Speaker of the House, Sam Rayburn, a brilliant country boy. Johnson marveled at the fact that all of the Kennedy folks had Ivy League degrees. Rayburn's prescient comeback was telling: "Yeah, but I wish a few of them had at least been elected sheriff." Different people bring different things to the table. Sometimes you just have to look.
Sean Payton, coach of the New Orleans Saints, has been banned for a year from football because his players were awarded a bounty for taking out an opposing player i.e. physically injuring him. This one could be a novel. First, the obvious. The length of the ban is as much about the fact that the Saints lied as about what was done. Why don't people learn? What if the message from President Clinton had been, "I did have sexual relations with that woman and I apologize to the nation, my family and particularly my wife." What if President Nixon had said, "There was a break-in. It was inexcusable and my aides who knew about it are hereby fired." In law I have had cases where the best that one can do is admit liability and get on with it. Juries love it for the same reason that the American public loves it. . I handled a catastrophic accident case where I received a call in the middle of the night requesting advise. I told the company representative to call the victim's family the next day and apologize, making clear that the company would want to talk settlement when the family was ready. That paid dividends that lead to a just settlement rather than a runaway jury. We as a society forgive sinners.
As profiled on Variety online, HBO has announced that it is canceling "Luck", the Dustin Hoffman TV vehicle after the death of a third horse on the show. The racetrack based series has gotten somewhat mixed reviews, albeit Hoffman is in anyone's Hall fo Fame. I will avoid easy speculation but do note that the ASPCA has become quite a political organization in recent years and no one needs a lawsuit from them. By the way, the expression "horse of a different color" supposedly relates to the practice of dying a horse's coat and changing its name to fool bettors.
Went and saw a major new talent the other night. Her name is Ramona Gonzales and her professional name is Nite Jewel. She performed in conjunction with release of her new album, which has been reviewed in the Sunday LA Times Arts Section and yesterday. There is something about seeing someone great at the beginning. I had the privilege of seeing LeBron in high school and I practice with an entertainment attorney who went from ingénue to wow during the course of his career. It is always a thrill.
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William Faulkner once said that in the world the past is past, but in the South, the past is present. As pointed out by T.J. Simers in his column March 7th in the Los Angeles Times, in Westwood, John Wooden is always present and he resurfaces in an on-line column that Kareem Abdul-Jabbar just did for ESPN. With the right audience, I am fond of joking that there has been only one perfect man, and look what humanity did to him.
Ben Howland is going through a rough patch at UCLA but is certainly capable of redemption if people will simply cut him some slack. At my former firm, one of the leading legal business producers and one of its most highly compensated partners had come close to being fired because he was not matched with the work that made him shine. Once the correction was made, the rest was history (or present).
Perhaps the finest legal movie ever was "The Verdict" where Paul Newman rises up from an alcoholic episode and a lethargic practice to win a huge victory in court. It happens in real life too, if people will engage in a little mercy and patience.
A post by my colleague, Michael J. Kline, Esq., on the Firm's White Collar Defense and Compliance Blog: "From the Judge's Ruling Yesterday, Wilpons Will Battle Picard at Trial - Where are the Sales of Minority Mets Interests? - Installment 70"
By Sekou Campbell, Esq.
Discovery in cases involving a high volume of data, can often feel like March Madness. A reviewer must winnow a huge field down to the “final four” of documents, those that are relevant to the underlying case. As with making picks in the NCAA tournament, different methods are employed with varying degrees of accuracy, time, and use of resources. Whether picking March Madness winners or choosing relevant documents in discovery, putting relevant data in the context of metadata should help improve the accuracy and efficiency of the selection process.
A common form of document review occurs in two steps. First, opposing counsel agree on a set of data and a “keyword(s)” with which to search that data. Second, counsel and paralegals for the producing party then manually review every page of every document that contains that potentially relevant “keyword(s).” This process can be both over-inclusive (containing documents with “keyword(s)” that are completely irrelevant) and under-inclusive (missing relevant documents that do not contain the critical “keyword(s)”). Because of the time involved, a more experienced litigator cannot execute the manual aspect of the above process. Thus, many researchers have sought to make the discovery of high-volume data more accurate and efficient.
Southern District of New York magistrate judge Andrew Peck recently weighed in on the issue in his Opinion and Order, which cites heavily to his article, “Search, Forward: Will Manual Document Review and Keyword Searches be Replaced by Computer-Assisted Coding?” He lauds the process of computer-assisted coding as a way to find relevant documents more accurately and efficiently in high-volume discovery cases. Computer-assisted coding, is a search based on a human review of a “seed set” of documents (a small subset of representative documents). Based on that “seed set” review, computer software creates an algorithm that analyzes the contents of the documents selected for data and metadata like time of creation, author, and program type. Once the algorithm is created, the computer can code documents for relevance based on how the “seed set” was searched (the existence of certain data in the context of certain metadata). On the back end, a human can test the relevance of randomly selected sample sets to ensure the algorithm produced an accurate search. Because the review of both the “seed set” and “sample set” can take up far less time than a “keyword” search review, a more senior attorney can take control of more of the review process even though a computer will execute most of the review. In short, putting data in context can serve to produce a more accurate, cheaper and less time-consuming computerized search of documents. That same principle has been utilized to come up with a more accurate prediction of NCAA Division I men’s basketball games.
At the MIT Sloan Sports Analytics Conference, Mark Bashuk has created the SevenOvertimesMetric (SOM), a ranking system that does not “focus on just the final score of the game” (a single data point, like a “keyword”). Instead, SOM uses an interesting set of algorithms to process play-by-play metadata to come up with a ranking system based on teams’ behavior at critical times in the game. For instance, Bashuk theorizes that a win by a certain amount of points is statistically less significant than understanding the context of that point differential. He notes that a 9-point win attributable to garbage-time buckets in the last two minutes of a blow out is very different from a 9-point win attributable to excellent free throw shooting at the end of a tight game, where the team in the lead is intentionally fouled. SOM is meant to account for those contextual differences. SOM has done a better job this year at predicting wins and losses than the RPI but has not yet outpaced Las Vegas odds makers. That said, SOM is still being developed, and I, for one, would like to see how this theory could apply to the playoff-less (sigh) NCAA Division I football rankings.
What makes a great lawyer? Part of it is competitiveness. Notre Dame has an intramural boxing program that students participate in for charity. One of my mentees is in the heavyweight finals. Think he would be competitive in a lawsuit. My co-blogger was on the UCLA National Championship Tennis Team. He is always in the game. I like hiring athletes, debaters and people with political backgrounds (regardless of parties). They know how to win. And when they lose they know how to get up and fight again.
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