Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Morgan & Morgan, P.A. 20 N. Orange Avenue, 16th Floor Orlando, FL 32801 Clay M. Townsend, Fl. #023414 Brandon S. Peters, Fl. #022641 Keith R. Mitnik, Fl. #436127 Attorneys for Neal Plaintiffs Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff Meadowlark Lemon UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, et al., Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al.; Defendants. Case Nos.: CV 04 0299 PHX DGC and CV-04-1023 PHX DGC PLAINTIFFS' RESPONSE TO DEFENDANTS' IN LIMINE MOTION TO EXCLUDE EVIDENCE OF STYLES THAT ONLY CONTAIN PLAINTIFFS' ALLEGED JERSEY NUMBERS, ALLEGED CARICATURES, THE "LEGENDS" EMBLEM AND/OR THE "LEGENDS" HANGTAGS

Plaintiffs Neal, Rivers, Thornton, Hall, Haynes, Sanders, and Lemon, through their respective undersigned counsel, hereby submit their joint Response to Defendants' In Limine Motion to Exclude Evidence of styles that only contain Plaintiffs' alleged jersey numbers, alleged caricatures, the "Legends" emblem and/or the "Legends" hangtags. Defendants argue that such evidence is irrelevant because there is no evidence consumers bought the styles because of their identifications of such with Plaintiffs.1 First, styles containing only player numbers, caricatures, the "Legends" emblem, or the "Legends" hangtags are clearly relevant to this litigation as they tend to make a fact of

1

Plaintiffs have over 100 garment exhibits, many with caricatures and hangtags, which Defendants have inspected twice.

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consequence (i.e., that Defendants used Plaintiffs' identities) more probable. Fed.R.Evid. 401. To prevail on a cause of action for common law misappropriation of plaintiff's name or likeness, a plaintiff must establish: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to the defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. Pooley, 89 F. Supp. 2d at 1111 (D. Ariz. 2000). Therefore, not only are Defendants use of Plaintiffs' names relevant, but also their use of other ways of identifying the Plaintiffs through player numbers, caricatures, and on the "Legends" hangtags. Second, it is Defendants themselves that made the associations between Plaintiffs and their player numbers, which Defendants now seek to discredit and have precluded from trial. It is Defendants who produced styles of clothing containing, for example, the name "Meadowlark" or "Lemon" on an article of clothing with the number "36" below it. It is also Defendants who thought up the idea of the "Legends" emblem and hangtags associating each Plaintiff with his particular player number, such as `Meadowlark Lemon' with the number 36, `Curly Neal' with the number 22, `Twiggy Sanders' with the number 43, `Big D Thornton' with the number 10, `Gator Rivers' with the number 11, and `Showboat Hall' with the number 46. Defendants themselves designed the clothing styles, "Legends" emblem, and "Legends" hangtag, which is direct evidence that Defendants themselves associated Plaintiffs with their particular player numbers. Now Defendants seek to discredit the very association between Plaintiffs and their player numbers that Defendants themselves created. Third, Bruce Wiesfeld himself testified at his deposition that the "Legends" hangtags were designed and used as marketing tools. See Deposition of Mr. Wiesfeld, p. 55-61. Fourth, Plaintiffs are not required, as an element of right of publicity, to present evidence from consumers that they actually purchased the particular styles because they identified the
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styles with Plaintiffs (i.e., consumer confusion). In fact, none of the cases cited by Defendants in their Motion in Limine support that proposition ­ such cases instead deal solely with the proof required to recover damages in trademark infringement/Lanham Act claims.2 Plaintiffs are only required to show that consumers would associate the likenesses portrayed by Defendants as Plaintiffs. In other words, it is enough for Plaintiffs to present evidence that Defendants used Plaintiffs' identities and, as a result, profited from that use. Pooley v. National Hole-In-One Ass'n, 89 F. Supp. 2d 1108, 1111 (D. Ariz. 2000). There is no requirement, as Defendants attempt to argue, that Plaintiffs' prove actual consumer confusion, an element which Defendants attempt to pull in from Plaintiffs now dismissed Lanham Act claims. It is sufficient that Plaintiffs present the items of clothing to the jury and leave it to the jury, as reasonable persons, to decide if they associate such likenesses with Plaintiffs. There are several ways to show association with Plaintiffs, and benefit to Defendants, without showing actual consumer confusion. Defendants tend to forget that it is they who chose to use Plaintiffs specific

identities, a decision that was made because it would benefit, not hurt, sales. Defendants are attempting to require Plaintiffs to put on their evidence prior to trial and turn this Court into the fact-finder, which is completely improper. It should be left to the jury, as the fact-finders in this case, to decide whether after hearing all of the evidence in this case, Defendants used Plaintiffs' identities and benefited from that use. Based upon the forgoing, Plaintiffs' have a right to present evidence regarding the styles that contain either their names or likenesses (i.e., player jersey numbers, caricatures, legends emblem and hangtags) or both.

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In fact, this Court in its Order of 6/27/2006, citing the Restatement, stated that Defendants bear the burden of attribution to reduce profits.

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RESPECTFULLY SUBMITTED this 21st By:

day of November 2006.

/s/ Clay M. Townsend CLAY M. TOWNSEND, ESQUIRE KEITH MITNIK, ESQUIRE Morgan & Morgan, PA Attorneys for Plaintiffs Fred Neal, Larry Rivers, Robert Hall, Dallas Thornton, Marques Haynes and James Sanders

By:

/s/ Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer ROSENQUIST & ASSOCIATES Attorneys for Plaintiff Meadowlark Lemon

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CERTIFICATE OF SERVICE Florence M. Bruemmer declares as follows: 1. I am and was at all times mentioned herein a citizen of the United States and a resident of Maricopa County, Arizona over the age of 18 years of age and not a party to the action or proceeding. I am an attorney with Rosenquist & Associates. 2. I hereby certify that on November 21st , 2006, a true and correct copy of the foregoing PLAINTIFFS' RESPONSE TO DEFENDANTS' IN LIMINE MOTION TO EXLUDE EVIDENCE OF STYLES THAT ONLY CONTAIN PLAINTIFFS' ALLEGED JERSEY NUMBERS, ALLEGED CARICATURES, THE "LEGENDS" EMBLEM AND/OR THE "LEGENDS" HANGTAGS was sent by postage-prepaid first-class mail, addressed to: Edward R. Garvey Christa Westerberg Garvey McNeil & McGillivray 634 West Mail Street Suite 101 Madison, WI 53703 Attorneys for Defendants Harlem Globetrotters Int'l, Inc. and Jackson Ira Sacks, Esq. Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendant GTFM, LLC Joel L. Herz, Esq. Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tuscon, Arizona 85718 Telephone: (520) 529-8080 Attorneys for Defendants FUBU the Collection, LLC GTFM of Orlando, LLC d/b/a FUBU Company Store Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C.
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15333 North Pima Road, #225 Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Ray K. Harris Fennemore Craig 2003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Attorneys for Defendants Harlem Globetrotters Int'l, Inc., Harlem Globetrotters Int'l Foundation, and Jackson

by placing same in a properly sealed, postage prepaid envelope and depositing same in a United States Postal Service mail box. 3. I declare under the penalty of perjury under the laws of the United States that the foregoing is a true and correct. Executed this 21st day of November 2006, at Phoenix, Arizona.

/s/ Florence M. Bruemmer Florence M. Bruemmer

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