Posted On: March 2, 2012 by Melvin N.A. Avanzado

ENTERTAINMENT & SPORTS LITIGATION: LOS ANGELES CLIPPERS ASSERT TRADEMARK RIGHTS AGAINST CLIPPER DARRELL

NBA TEAM SEEKS TO STIFLE SUPERFAN AND STOP USE OF "CLIPPER" MARK

Darrell Bailey aka Clipper DarrellWith the arrival of new star players Chris Paul and deAndre Jordan, coinciding with the continued rise of mega-star Blake Griffin, the once hapless Los Angeles Clippers have a new identity ("Lob City") and a rekindled fan base. Once the laughingstock of all sports franchises, the Clips find themselves leading the Pacific Division of the NBA's Western Conference as of the date of this post (a half game over the Los Angeles Lakers), playing an exciting brand of basketball that's the talk of the League. In fact, Clipper fans have boldly declared that their beloved team is now THE team of Los Angeles.

(As a long time Lakers fan, I scoff at this notion. Hang some banners and get your own arena before making such ridiculous statements.)

This week, the Clippers are making news off the court. The team has become embroiled in a controversy with its most visible fan, Darrell Bailey, known to Clipper Nation as "Clipper Darrell." The team wants Clipper Darrell to go back to being just Darrell and drop the "Clipper" mark from his moniker.

After the jump, as a sports fan, and intellectual property litigator, I will discuss this burgeoning dispute between the club and its superfan and whether Lob City is better served enjoying its most visible fan's support instead of stifling it.

THE "CLIPPERS" TRADEMARK

No one can deny that the Clippers are much improved -- at times, playing as well as any team in the NBA. You would think the Clippers would be riding high, enjoying their newfound success. But then again, we're talking about the Clippers. With timing that is curious at best, the Clippers front office apparently has declared that their most dedicated fan -- Clipper Darrell -- must stop using the Clipper name. Published reports (including this article in the Los Angeles Times) quote Clipper management who accuse Darrell of "inappropriate use of the Clippers’ team name and trademark for his own unmonitored commercial gain" and of acting "in ways which improperly suggest that he is officially affiliated with our organization." That legalese means that the team has decided to protect its trademark and deny Darrell the use of the "Clipper" part of his name.

As the owner of the "Clippers" trademark, the team has the right -- and obligation -- to control the use of that trademark by others to protect the team's rights. Failure to enforce those trademark rights could lead to a loss of the team's trademark rights in some cases. Companies hire intellectual property litigators (like me) everyday to make sure that no unauthorized persons use their trademarks which associate those unauthorized users with those companies. The key to the trademark analysis is whether the unauthorized person is creating an improper association with the trademark owner through the use of the mark. If so, then the trademark owner must stop it -- or risk losing its rights.

Regarding "Clipper Darrell," when this dispute became public, the Clippers issued a press statement outlining its positions. The Clippers accuse Darrell of "inappropriate use of the Clippers’ team name and trademark for his own unmonitored commercial gain." The Clippers further state: "We have spoken to him repeatedly about his desire to make public appearances in ways which improperly suggest that he is officially affiliated with our organization. In all cases and over a long period of time, he has consistently rejected our efforts to operate in consultation."

In response to the media and public perception that the Clippers fired him, the Clippers proclaim that Clipper Darrell "has never been an employee or representative of the Clippers organization, and therefore cannot be terminated."

The Clippers' positions are typical of what a trademark owner would take against someone who is using a mark without authorization -- and improperly associating himself with an organization. Of course, as may be expected with the Clippers, there's more than meets the eye.

ANY LEGAL BATTLE BETWEEN THE TEAM AND CLIPPER DARRELL IS NOT A BLAKE GRIFFIN SLAM DUNK


The Clippers being what they are -- the Clippers -- any legal battle over Clipper Darrell's use of the Clipper name is not as simple as it may seem. That's because the association between Clipper Darrell and the Clippers appears to be authorized. In other words, the Clippers have allowed Clipper Darrell to use the Clipper name for over 10 years. For example, the Clippers' official NBA website contains a biography of "Clipper Darrell" which you can view here.
Clipper Darrell appears in the stands and on the floor at Clipper basketball games wearing a (ridiculous/infamous) red, white and blue Clipper suit as shown in this picture. Clipper Darrell drives a custom made Clipper-clad BMW in and around Los Angeles. Clipper Darrell also was the face of the public Clipper "campaign" (which you can see here) to bring LeBron James to the Clippers. The Clippers not only knew about and allowed Clipper Darrell to use the Clipper name through all these years; the team also also officially promoted (and profited from) it.

More importantly, the Clippers' own public statements establish that Clipper Darrell has been using the Clipper name "over a long period of time" all the while rejecting the team's efforts to control (or coordinate) Clipper Darrell's use of that name. As a result, Clipper Darrell could legally defend his use of the "Clipper" mark through various equitable doctrines -- such as laches, estoppel and acquiescence.

The practical effect of any of these doctrines would prevent the Clippers from claiming that Darrell Bailey's use of the Clipper Darrell name violates the team's trademark rights because the team either unreasonably delayed trying to stop him or the team expressly permitted him to use that mark. Of course, these equitable defenses are difficult to establish -- and there are many limitations to the doctrines that could derail Darrell's use of these equitable defenses.

However, at the end of the day, the Clippers must justify their promotion (and use) of Clipper Darrell -- and his name and image -- for over 10 years and the quick revocation of that permission now. Allowing Darrell to use the Clipper name during a time which the Clippers were one of the worst, if not the worst, NBA teams -- and largely devoid of any passionate fans -- and now suddenly shifting positions to deprive Darrell of the use of that name during the team's success this year -- seems unfair. Indeed, the team must bear some responsibility in creating the perception that "Clipper Darrell" is an authorized, official representative of the team. In a legal battle between the team and Clipper Darrell, it could be close.

IN THE COURT OF PUBLIC OPINION, THE CLIPPERS ARE TOAST

Regardless of the merits of the Clippers' positions under trademark law, there seems little doubt that public opinion overwhelmingly favors Clipper Darrell. The team's press statement is defensive -- dismissing the publicity generated by Clipper Darrell (which portrays the team in a negative light) to be a "media rush to judgment." In fact, the team seems intent on portraying itself as the victim to Clipper Darrell's attempt to profit from his (supposedly unauthorized) association with the team. (How much could a goofy fan dressed in a red, white and blue suit profit, exactly?) The media and public aren't buying it.

Indeed, Lob City's two most celebrated stars, Chris Paul and Blake Griffin -- and the two most responsible for the team's newly found on-court success -- publicly tweeted their support for Clipper Darrell. In the face of the Clippers' dismal history, and the strong negative perception of the Clippers' ownership and organization, the Clippers' spat with Clipper Darrell dampens public enthusiasm for the team just as the team seeks to finish the most successful season in team history.

TAKEAWAYS

What conclusions can we draw from this very public dispute? My initial reaction to the Clippers' attempt to silence its number one fan was: "Really?! Really, Clips?!"

The Clippers need to get out of their own way. The team is finally seeing some success on the court. The fan base for the first time in recent memory is energized. The Clippers took advantage of Clipper Darrell's enthusiasm for years when no one else cared about the team. What is the purpose of stifling the Clippers' most visible and vocal fan now?!

Even if Clipper Darrell is trying to profit personally from his association with the team, those amounts pale in comparison to the millions of dollars in revenues and players' salaries. There is little chance that Darrell would impact the team's profits, or tarnish the team's image, from any appearances he makes. The Clippers allowed Darrell to dress himself in a ridiculous suit and make an ass of himself for years without complaint -- or compensation (beyond free tickets). It doesn't really seem fair for the team to complain about it now.

More importantly, even if the team could legally prevent Clipper Darrell from continuing to be Clipper Darrell, it just seems like a dumb thing to do. Then again, we are talking about the Clippers -- an organization which has been synonymous with dumb decisions. (Remember Michael Olowokandi? The Clippers selected him with the first pick of the 1998 NBA draft -- over perennial all-stars and future hall of famers, Paul Pierce and Dirk Nowitzki,among others.) This Clippers created controversy which threatens to tarnish their best season in Clipper history would be the latest in a long list of dumb organizational decisions.

So, the Clippers front office needs to get a grip, and let Clipper Darrell be Clipper Darrell. Otherwise, this decision will go down as one of the many reasons why Los Angeles will always a Lakers town.

The Entertainment Litigation Blog is published by Melvin N.A. Avanzado, an entertainment litigator and civil trial lawyer in Los Angeles. Mel is an accomplished trial lawyer with over 20 years experience. Mel's practice includes extensive experience representing plaintiffs and defendants in complex disputes, including the representation of motion picture studios, television networks, media companies, and significant individuals in the entertainment and sports industries.

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