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Archive for May, 2009

Redskins Win Right to Keep Their Nickname…..For Now

Sunday, May 17th, 2009

RedskinsThe NFL’s Washington Redskins have won another legal decision against a group of Native Americans who claim that the team’s nickname “Redskins” is racially offensive.   http://sportsillustrated.cnn.com/2009/football/nfl/05/15/redskins.ap/index.html

The battle between the Native Americans and the NFL franchise for the right to use the “Redskins” has been going on for over 17 years.  The attorneys for the Redskins based their case on trademark law, claiming that if the team lost to their right to use the nickname, the organization would lose millions that have been spent on the Redskins brand.  The Redskins trademark was first registered and used in commerce in 1967. The Native Americans challenging the trademark, first challenged the mark in 1992, 25 years after it was first used in commerce and the court ruled that the Native Americans waited too long to challenge the mark.

Another group of Native Americans plan on challenging the mark and will try to get the case challenged on its merits, that the term “Redskins” is racially disparaging and scandalous.  The Native Americans plan on challenging the mark under under section 2(a) of the Lanham Act which states that “no trademark shall be refused unless it “consists or comprises of immoral, deceptive, or scandalous matter.”  To determine whether a mark is disparaging the court must look at (1) the likely meaning of the matter in question, as it appears in the marks and as those marks are used in connection with the services identified in the registrations and (2) whether that meaning may be disparaging.   To determine whether a mark is scandalous the court will look at (1) the view of the general public and (2) in the context of contemporary attitudes.

As the court ruled in Harjo v. Pro Football Inc. (1999), I believe a court would find that disparagement could be proven, but not that the mark is scandalous.  The Scandalous test cannot be met as the general public views the Redskins mark in association with a proud NFL franchise in which the players are akin to warriors.  Some Native Americans have even been quoted as saying that they don’t mind the Redskins mark as long as the team depicts Native Americans in a favorable manner.  Disparagement could be proven under the test stated above, as it is possible that the mark is disparaging.

Even if it can be proven that the trademark is disparaging, it will be extremely difficult for anybody to challenge the mark at this point as the mark should have been challenged when it was first approved by the U.S. Patent and Trademark office in 1967.  The mark is now accepted by the general public and a multi-million dollar brand.  The courts are hesitant to take away a mark if those offended by the mark did not challenge the mark at an appropriate time when they had the chance.

 

New Legislation May Lift Ban on Using American Credit Cards for Online Gambling

Saturday, May 9th, 2009
Barney Frank

Barney Frank

Currently in the United States it is illegal for Americans to use credit cards to place bets of any kind online.  This rule was enacted in 2006 under the Uniform Internet Gambling Enforcement Act  (UIGEA).  Representative Barney Frank (D-Mass.) seeks to repeal the UIGEA and make it possible once again for American banks to allow their customers to place bets online.  http://www.creditcards.com/credit-card-news/frank-bill-authorize-online-gambling-1282.php.

Although a person may get around the UIGEA regulations by using foreign companies to place bets; repealing the UIGEA is a much simpler alternative.  Frank argues that the government should not interfere with a persons liberty interest to make online bets.  The new legislation  is called the Internet Gambling Regulation Consumer Protection and Enforcement Act and establishes framework that would allow online operators to obtain licenses to accept bets from U.S. residents.  In order for the operators to obtain a license, they would have to meet strict requirements and pass background checks.

Allowing Americans to place wagers online while doing it in a matter that protects the consumer and requires background checks of online operators can only be beneficial.  The online gambling business currently generates $10-$12 Billion a year, and the U.S. is being cut out of the action.  This new law if enacted would be good for the U.S. economy and good for the American entrepreneurs while protecting consumers who are using foreign websites to meet their gambling needs.

Seattle Business Lawyer

Philadelphia Phillies Pitcher Blames Supplement Maker for Suspension and Files Suit

Sunday, May 3rd, 2009

6-oxoPhiladelphia Phillies pitcher J.C. Romero was suspended for the first 50 games of this season after testing positive for steroids last year.  Romero filed a lawsuit against nutritional supplement manufacturer ErgoPharm, Inc. for manufacturing the supplement 6-OXO and 6OXO Extreme without indicating on the label that the supplement included Androstenedione (“Andro”), a MLB banned substance.  http://sports.espn.go.com/mlb/news/story?id=4105353

Patrick Arnold, a chemist who runs ErgoPharm and has a history working with steroids, put out a statement claiming that there is a warning label on the 6-OXO  supplements which states “Use of this product may be banned by some athletic or government associations.”

In order to have a product liability claim for having an inadequate warning label, a plaintiff must prove that the average person looking at the warning label would find that the label failed to warn of possible dangers or cause consumers to not understand, be  confused by, or find the warning label is not properly visible.  The outcome of this case is extremely hard to predict as the case will probably be tried in front of a jury.  Juries can be extremely unpredictable and nothing is ever guaranteed no matter how good a case a party may have.  In any event, if Romero’s lawyers can prove that the warning was inadequate, he will probably be entitled to damages in the form of lost salary due to the suspension and possibly punitive damages to make an example of the company.

Athletes use supplements at their own risk, but it should be the manufacturers who are held accountable if they are aware of potentially banned substances being included in their supplements and not giving proper warnings.  In order to help athletes make better choices when choosing supplements to put in their body, major league sports should be required to provide a list of approved substances if they don’t do it already.  Thus, if a player tests positive from the use of an approved supplement they shouldn’t get in trouble and risk losing salary due to unjustified suspensions.

Seattle Sports Lawyer

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