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Fantasy football and my fantasy TM law

By Rebecca Tushnet

CBS Interactive Inc. v. National Football League Players Association, -- F. Supp. 3d -- (D. Minn. 2009)

Held: Fantasy football statistics are just the same as fantasy baseball statistics when it comes to right of publicity claims, and thus use without a license from Players is protected by the First Amendment.

Although there was no separate false endorsement claim, Players argued that the possibility of false endorsement distinguished CBS?s use of football statistics from the fantasy baseball allowed in C.B.C. Distrib. & Mktg, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2006), for purposes of preserving Players? right of publicity claims. The court found no genuine issue of material fact:

The printouts of CBS Interactive?s website fail to demonstrate specific facts that support the assertion that the manner in which CBS Interactive presents the package of player information could give the false impression of an endorsement. The manner in which the information appears does not demonstrate or imply any connection between the players and the advertisement such that one could mistakenly believe that an endorsement is being made. Indeed, as CBS Interactive persuasively argues, the manner in which the player information is presented is akin to newspapers and magazines, which routinely display pictures and information about celebrities, including professional athletes; however, ?[n]o one seriously believes that the subjects of news reports are endorsing the company that provides the report? nor the products and services advertised by third parties who have purchased advertising space in the newspaper or magazine.

What always fascinates me about such conclusions is their conclusory nature, because even though the court is obviously right, normatively and probably descriptively, trademark?s tests have no obvious way of reaching that result. Thus the tests must be avoided.

See also this non-trademark footnote that courts deciding trademark cases would do well to heed:

Whether CBS Interactive used player information in a manner that might imply an endorsement can be determined by looking to the manner in which player information was used, without any need to consider the subjective strategy or intent behind the use. If the use of information implied an endorsement, the fact that the user did not subjectively intend to imply such an endorsement would not change the analysis. Likewise, if the manner in which the information is used utterly fails to convey the implication, it would not matter that the user subjectively intended to imply an endorsement.

Full post as published by 43(B)log on May 04, 2009 (boomark / email).