Free Reply in Support of Motion - District Court of Arizona - Arizona

Case 2:04-cv-00299-DGC Document 546-6 Filed 11/27/2006 Page 1 014

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1 Joel L. Herz, Esq.
_ » State BarNo. 015105
2 Law Offices of Joel L. Herz g.
3 3573 East Sunrise Drive, Suite 215
·Tucson, AZ 85718
4 Telephone: 520-529-8080 -
Facsimile: 520-529-8077 C.
5 Ei
V Ira S. Sacks, Esq.
6 Safia A. Anand, Esq.
Dreier LLP Q,
499 Park Avenue ii
3 New York, NY 10022 -
l Telephone: 212-328-6100 fi
-9 Facsimile: 212-328-6101 g-.
lo Attomeys for Defendant GTFM, LDC
E ;¤
‘ UNITED STATES DISTRICT COURT
I2 DISTRICT OF ARIZONA —
153 MEADOWLARK LEMON, a married ) 41
.. __ man. )
14. )
15 Plaintiff7Counterdefendant Case No. CV 04-0299-PHX-DGC _f
vs. ) Case N0. CV 04-l023·PHX—DGC 1
16 .
I HARLEM GLOBETROTTERS ) -
17- z _ INTERNATIONAL, INC., et al., ) Tg
) ETC
I6 Defendants/Counterclaimants ) ‘
{ ’‘.’ . 5’’`
20 DECLARATION OF BRUCE WEISFELD IN SUPPORT OF GTFM, LLC’S ii
MOTION FOR SUMMARY JUDGMENT jp
22 D BRUCE WEISFELD declares as follows under penalty of perjury pursuant to 28
23 { U.s.c. 5 1746: *
24 1. I am President of GTFM, LLC ("GTFM"). I submit this declaration in 5 _
as
N support of GTFM’S Motion For Summary Judgment. id
26
av
28 1
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Case 2:04-cv-00299-DGC Document 546-6 Filed 11/27/2006 Page 2 of 4

1 2. Other than as expressly set forth herein, the matters set forth herein are
-2 based on my personal knowledge.
3 3.. GTFM and Harlem Globetrotters International, Inc. ("HGI") entered into a
4 _ I License Agreement on Jime l, 2002, wherein HG1 licensed to GTFM, LLC, among other rights, S
! the right to use the names and likenesses of any and all players who have played for the Harlem
,,7. Globetrotters, or who hereafter play for the Globetrotters during the term of the agreement, other
3 than Wilt Chamberlain and Magic Johnson.
9. 4. Pursuant to the License Agreement, GTFM (and its licensees)
10 manufactured and sold products bearing the Harlem Globetrotters’ trademarks. The line
Il i included jeans, denim shorts, jerseys, tank tops, jumpsuits, dresses, skirts, shorts, hats, sneakers,
1020 pants and shirts made by GTFM and licensees of GTFM (the "FUBU/I-IGI Apparel").
5. Also pursuant to the License Agreement, gm; of the FUBU/HG1 Apparel
1-5 contained the plaintiffs’ names, alleged jersey numbers, and alleged likenesses and/or images.
1.6, 6. The License Agreement expired on November 30, 2004 and permitted
1.7 GTFM a one hundred eighty (180) day sell-off period. GTFM is not currently manufacturing
19 and/or selling any Alleged Infringing FUBU/HGI Apparel and will not do so in the future.
19 7. Nonetheless, retails stores, which have no affiliation to GTFM or any
20 other FUBU-related entity, continue to sell off the merchandise that they had previously
2; purchased. These retail sales do not have any impact on GTFM’s present or future revenues and
23 such sales are not reported to GTFM, except to the extent that any such retailer may have
2 4 requested a credit or offset against the merchandise, in which event GTF M’s revenues would be
2-5 lowered.
ze 2
Case 2:04-cv-00299-DGC Document 546-6 Filed 11/27/2006 Page 3 of 4


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li. l 8. GTFM did not enter into the License Agreement blindly. GTFM was
2 Q aware that HG1 had been using and licensing the rights to the names and likenesses of players
3 and former players for decades and was not aware of any complaints regarding such uses. I
4 1 9. When deciding whether to enter into the License Agreement, GTFM relied
2 gg on the representations and indemnification provisions ofthe License Agreement, and the fact that
,7. no player had ever sued the Globetrotters for misuse of their names and/or likenesses.
3 l0. If GTFM had been aware of any complaints by former players regarding
9 liHGI’s use of their names and/or likenesses, GTFM would not have entered into the License
10 it Agreement or would have done an altemative line of clothing, which was free of iniringement
Hi Ii claims.
I declare under penalty of perjury that the foregoing is true and correct.
13- Dated: New York, New York .-—" gk t
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