Free Reply to Response to Motion - District Court of Arizona - Arizona

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Anders Rosenquist, Jr. #002724 Florence M. Bruemmer #019691 Rosenquist & Associates 80 E. Columbus Phoenix, Arizona 85012 Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Case No. CV 04-299 PHX-DGC and CV 04 1023 PHX-DGC

MEADOWLARK LEMON, a married man, Plaintiff, vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation; HARLEM GLOBETROTTERS INTERNATIONAL FOUNDATION, INC., an Arizona corporation; MANNIE L. JACKSON and CATHERINE JACKSON, husband and wife; FUBU THE COLLECTION, LLC, a New York limited liability company doing business in Arizona; GTFM, LLC, a New York limited liability company doing business in Arizona; Defendants.

PLAINTIFF MEADOWLARK LEMON'S REPLY TO DEFENDANT GTFM, LLC'S AND FUBU THE COLLECTION, LLC'S RESPONSE TO MEADOWLARK LEMON'S MOTION FOR SUMMARY JUDGMENT

HARLEM GLOBETROTTERS INTERNATIONAL, INC., an Arizona corporation, Counter-claimant, vs. MEADOWLARK LEMON, a married man, Counterdefendant.

Case 2:04-cv-00299-DGC

Document 325

Filed 12/15/2005

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Plaintiff, Meadowlark Lemon (hereinafter "Plaintiff"), through undersigned counsel, respectfully submits his Reply to GTFM LLC's and FUBU the Collection, LLC's (hereinafter as "GTFM" and "FUBU," respectively, or collectively as "Defendants") Memorandum of Law in Opposition to Meadowlark Lemon's Motion for Summary Judgment. Plaintiff submits this Reply in further support of his Motion for Summary Judgment, Doc. 197, and even after Defendants' have responded to Plaintiff's Motion, Plaintiff is still entitled to summary judgment on all claims enumerated in his Complaint. MEMORANDUM OF POINTS AND AUTHORITIES STATEMENT OF FACTS. For the Court's convenience, rather than reiterate the facts that have already been so extensively set forth in the various motions for summary judgment and responses thereto, Plaintiff will rely on his Statement of Facts ("SOF"), Doc. 206, filed with his Motion for Summary Judgment, as well as his Reply to GTFM, LLC's and FUBU the Collection, LLC's Objections to Plaintiff's Statement of Facts and Further Statement of Facts filed herewith. Plaintiff would also like to refer the Court to his Statement of Contraverting Facts ("GTFM SOCF"), Doc. 248, submitted with his Response to GTFM's Motion for Summary Judgment. However, Plaintiff would like to address a few points raised in Defendants section entitled `statement of facts.' First, Defendants state that Plaintiff has failed to assert any claims against FUBU the Collection, LLC. However, Plaintiff presented ample evidence as to FUBU the Collection's liability in this matter in Plaintiff's Response to FUBU the Collection's Renewed Motion for Summary Judgment. The merchandise that is the subject of this lawsuit has been developed, created, produced, manufactured, marketed, promoted, and/or distributed for widespread sale by Defendants. (See Plaintiff's Statement of Contraverting Facts in Support of Plaintiff's Response to Defendants FUBU the Collection, LLC's Renewed Motion for Summary Judgment, Doc. 246, ("FUBU SOCF") ¶ 21-22, 4145). FUBU the Collection, LLC participated in the design and marketing of the clothing line. (FUBU SOCF, Doc. 246, ¶ 41). Daymond Aurum is CEO of FUBU the Collection, LLC and he is in charge of marketing, looking over distribution, and product placement on artists. (FUBU SOCF, Doc. 246, ¶ 42). Before entering into the contract with HGI, Mr. Aurum, on behalf of FUBU the Collection, LLC, -2Case 2:04-cv-00299-DGC Document 325 Filed 12/15/2005 Page 2 of 12

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attended meetings regarding the formulation of the clothing line, and approved the idea of the Harlem Globetrotters clothing line because he though it would be a good next step to FUBU's Platinum Line. (FUBU SOCF, Doc. 246, ¶ 43). Mr. Aurum, on behalf of FUBU the Collection, LLC, determined

styles of the clothing in the line and marketing as far as what type of advertising should be done. (FUBU SOCF, Doc. 246, ¶ 44). Samples of the clothing line would be looked at by Mr. Aurum, on

behalf of FUBU the Collection, LLC, and he would approve or disapprove the various styles. (FUBU SOCF, Doc. 246, ¶ 45). LLC. The remainder of Defendants' introductory paragraphs and `statement of facts' section simply give a summary of the arguments that are covered more extensively in their brief. In fact, Defendants so called `statement of facts' is full of conclusory statements unsupported by any citation to the record. Additionally, many other statements in the `statement of facts' are conclusions of law which are supported only by a citation to defense counsel's self-serving declaration. Therefore, Plaintiff will forego responding to the remainder of Defendants' statement of facts and instead will reply to the arguments raised therein when addressed by Defendants in the body of their response. II. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS LANHAM ACT CLAIMS. GTFM asserts that summary judgment for Plaintiff on his Lanham Act claims is improper because Plaintiff has "completely failed to adduce any evidence of secondary meaning or likelihood of confusion, both prerequisites to protection under the Lanham Act." First, Plaintiff has established the element of `secondary meaning.' "Secondary meaning is the consumer's association of the mark with a particular source or sponsor." (E. & J. Gallo Winery v. Gallo Cattle Company, 967 F.2d 1280, 1291 (9th Cir. 1992)). It is clear that Defendants use of Plaintiff's name and player number would cause the consumer to associate the clothing with Plaintiff as the source and/or sponsor. (GTFM SOCF, Doc. 248, ¶ 44-46, 56, 58-64). Plaintiff is the only person named Meadowlark Lemon that has ever played for the Globetrotters and therefore there is no other "Lemon" that consumers could possibly associate the `mark' with as the source or sponsor. Plaintiff is a well-known celebrity, -3Case 2:04-cv-00299-DGC Document 325 Filed 12/15/2005 Page 3 of 12 Therefore, Plaintiff has clearly stated a claim against FUBU the Collection,

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which each of the Defendants testified to in their depositions, and Plaintiff has used his name to promote his ministries and charities and his own basketball team. (GTFM SOCF, Doc. 248, ¶ 41, 79). The public is very aware that celebrities, especially sports celebrities, make profits from endorsing products such as clothing, etc. The concept of celebrity endorsement of goods is common knowledge among consumers. Therefore, the use of his name in conjunction with a clothing line, especially sports apparel such as basketball jerseys, implies to the public that Plaintiff is endorsing, or has given approval, to the product. Not only did GTFM use Plaintiff's name and player number on the clothing, but it was used in connection with the one team for which Plaintiff is most recognized, the Harlem Globetrotters. Furthermore, Defendants themselves put the number thirty-six on the clothing bearing Plaintiff's name, which demonstrates that even Defendants associated the number thirty-six with Plaintiff. Also, fans of Plaintiff wore the Globetrotters FUBU apparel bearing his name to Plaintiff's induction into the Basketball Hall of Fame. (GTFM SOCF, Doc. 248, ¶ 55). Because consumers associate Plaintiff's name and player number (the `mark') with Plaintiff as the source/sponsor, Plaintiff has proven the element of secondary meaning. Second, Plaintiff has also established the element of `likelihood of confusion.' Defendants attempt to distract the Court by insinuating that the Court must follow the eight-factor test enumerated in AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), instead of the five-factor test set forth by Plaintiff in his Motion for Summary Judgment. However, in White v. Samsung, 971 F.2d 1395 (9th Cir. 1992), the court states, "this circuit recognizes several different multi-factor tests for determining whether a likelihood of confusion exists." The court goes on in White to support this proposition by citing to cases in which the courts have used a six-factor test and an eight-factor test, and yes, the court even cites New West (relied on by Plaintiff in his Motion for Summary Judgment) as setting forth a proper test for likelihood of confusion. Id. None of those tests is correct to the exclusion of the others. Id. There is no indication that the cases applying five or six factors were intended to undermine other cases that enumerated eight factors, or vice versa. Ecplise Assoc., Ltd. v. Data General Corp., 894 F. 2d 1114, 1118 (9th Cir. 1990). "The Ninth Circuit enumerated likelihood of confusion tests as helpful guidelines to the district court." Id. (emphasis added). "These tests were not meant to be requirements -4Case 2:04-cv-00299-DGC Document 325 Filed 12/15/2005 Page 4 of 12

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or hoops that a district court need jump through to make the determination." Id. The Ninth Circuit has never articulated specific factors that a district court must recite and apply, instead, they have identified a non-exclusive series of factors that are helpful in making the ultimate factual determination. Id. Therefore, the five-factor test as set forth in Plaintiff's Motion for Summary Judgment is an appropriate guideline for this Court to follow in determining the likelihood of confusion. That fivefactor test includes: 1) similarity of the marks; 2) relatedness of the products; 3) intent of the defendant in selecting the mark; 4) strength of plaintiff's mark; and 5) actual confusion. New West Corp. v. NYM Co. of California, Inc., 595 F.2d 1194, 1198 (9th Cir. 1979), White v. Samsung Electronics America, Inc., 971 F.2d 1395, 1400 (9th Cir. 1992). In cases involving confusion over endorsement by a celebrity plaintiff, "mark" means the celebrity's persona. Id. The "strength" of the mark refers to the level of recognition the celebrity enjoys among members of the society. Id. Also, when determining

Defendant's intent, the relevant question is whether the Defendant intended to profit by confusing consumers concerning the endorsement of the product. Id. Therefore, to establish the `likelihood of confusion' element, Plaintiff must show that Defendants' use of his name, by licensing it to be used in a clothing line, is likely to cause confusion among consumers as to the connection between him and the goods. First, the "mark" used by Defendants and Plaintiff's "mark" are identical. Defendants used Plaintiff's name and retired player number. Most of the clothing or tags either had Plaintiff's entire name emblazoned across it, would have just his first or last name on it, or just his retired number. Second, Defendants' product, the sports apparel, is identical to Plaintiff's. Defendants used Plaintiff's name on sports apparel, including basketball apparel, which is the only sport that Plaintiff is famous for. Plaintiff continues, through his ministries and charities, to produce and distribute sports and basketball products with his name on it. Therefore, Defendants are marketing and selling the only product for which Plaintiff has any notoriety. Third, the intent of Defendants in selecting Plaintiff's name to use in the clothing line is clear: commercial profit. (GTFM SOCF, Doc. 248, ¶ 65-70.) Defendants used

Plaintiff's name solely for their own profit. Fourth, the "strength" of Plaintiff's `mark,' which refers to -5Case 2:04-cv-00299-DGC Document 325 Filed 12/15/2005 Page 5 of 12

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the level of recognition he enjoys among members of the society, is very strong. Not only are the Harlem Globetrotters a well-known team around the world, but Plaintiff is the most recognized player. (GTFM SOCF, Doc. 248, ¶ 60-64.) Lastly, the concept of celebrity endorsement of goods is common knowledge among consumers. The public is very aware that celebrities, especially sports celebrities, make profits from endorsing products such as clothing, etc. Therefore, actual confusion is certain. Plaintiff has established the elements of `secondary meaning' and likelihood of confusion.' After evaluating the relevant factors regarding the elements of `secondary meaning' and `likelihood of confusion,' it is clear that Defendants use of Plaintiff's name is likely to cause confusion among the public as to the connection between the Plaintiff and the clothing. Therefore, Plaintiff is entitled to summary judgment against Defendants as a matter of law. Moreover, even though Defendants assert that they were aware that HGI had been using and licensing the rights to Plaintiff's name and likeness for decades and was not aware of any complaints regarding such use (apparently attempting to raise the defense of laches), Plaintiff has not unreasonably delayed in asserting his rights, which is a required element of the defense of laches. Defendants continually claim that the Globetrotters have used Plaintiff's name and likeness "for decades" without objection by Plaintiff. However, Defendants fail to state how the Globetrotters have used Plaintiff's name and the fact that prior uses of Plaintiff's name by the Globetrotters was completely unlike the sublicensing agreement undertaken by Defendants and HGI. Defendants' use of Plaintiff's name and likeness was a clear violation of Plaintiff's rights and is not legal. In fact, outside of the HGI/GTFM sublicensing agreement, HGI has never used Plaintiff's name and likeness on a clothing line. At no time from October 15, 1975 through October 14, 1980, was any clothing, especially sports ware, being sold with the individual player names on it. (GTFM SOCF, Doc. 248, ¶ 76). Aside from the FUBU clothing line, HGI has not been involved in utilizing Plaintiff's name and likeness. (GTFM SOCF, Doc. 248, ¶ 77). Not even the clothing sold in the arenas at Harlem Globetrotters events contains Plaintiff's name and likeness. (GTFM SOCF, Doc. 248, ¶ 78).

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To Plaintiff's knowledge, the Globetrotters have never before inappropriately sublicensed or used his name and likeness. Therefore, Plaintiff never had a reason to complain to HGI or any other company about the use of his name and likeness. As soon as Plaintiff became aware of HGI and Defendants' illegal use of his name and likeness, Plaintiff immediately instituted legal action. For those reasons, a defense of laches cannot stand and therefore Plaintiff's claims are not barred for that reason. III. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS UNJUST ENRICHEMENT CLAIM. Defendants next argue that Plaintiff has failed to establish the elements required to prevail on a claim for unjust enrichment. However, contrary to Defendants assertions, Plaintiff has set forth ample evidence to prove that he has met the elements required to prevail on an unjust enrichment claim and therefore is entitled to summary judgment. "Unjust enrichment occurs whenever a person has and retains money or benefits which in justice and equity belong to another." Sierra Vista v. Cochise Enters., 144 Ariz. 375, 381 (1984). Defendants had no right to use, or license for use, Plaintiff's name and likeness as Defendants did by entering into the contract with HGI. (GTFM SOCF, Doc. 248, ¶ 73-76). Plaintiff was and is the only person who has the authority to use and consent to the use of his name and likeness in connection with any product. (GTFM SOCF, Doc. 248, ¶ 41, 73-76). However, Defendants exploited Plaintiff's protected right to the exclusive use of his name and likeness as if it were a trademark, by placing Plaintiff's name on a clothing line. Furthermore, Plaintiff gained his celebrity status and entry into the Basketball Hall of Fame through his own hard work and sacrifices. Plaintiff's status in the community is what it is today because of Plaintiff's athletic ability, goodwill, well-known reputation, ministry, and work with charities. (GTFM SOCF, Doc. 248, ¶ 79). Defendants exploited Plaintiff's celebrity and goodwill status, and profited by doing so. It is through Plaintiff's celebrity status that Plaintiff conferred a benefit on Defendants. (GTFM SOCF, Doc. 248, ¶ 56-64). It is also through Plaintiff's status in the community

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that Defendants were able to make a profit on the clothing that displayed Plaintiff's name and likeness. Therefore, Plaintiff provided a benefit to Defendants. Plaintiff conferred this benefit to Defendants under circumstances that would render inequitable Defendants retention of the benefit without payment because it is Plaintiff, not Defendants, that is entitled to the profits from the sale of the clothing bearing his name and likeness. (GTFM SOCF, Doc. 248, ¶ 41, 73-76). Defendants had no authority to use Plaintiff's name and likeness and, to make matters worse, never used due diligence when entering into the contract with HGI, choosing instead to solely rely on the baseless assertions of HGI and an indemnification agreement. (GTFM SOCF, Doc. 248, ¶ 36-38, 80-89, 92). Therefore, it would be inequitable for Defendants to retain the benefit that Plaintiff conferred on it. Furthermore, Defendants continued assertions that Plaintiff was not impoverished ­ i.e., did not suffer any loss of income, is absurd. Defendants made millions off of their use of Plaintiff's name and likeness. (GTFM SOCF, Doc. 248, ¶ 65-70.) Furthermore, Plaintiff was not paid one cent, and never cashed a $5,000.00 check that HGI mailed him as a `token of goodwill' after they became aware that legal action was about to commence. (GTFM SOCF, Doc. 248, ¶ 26.) IV. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS RIGHT OF PUBLICITY CLAIM. Defendants assert that Plaintiff has not established a common law right of publicity claim. However, it is clear that Plaintiff has met all of the elements enumerated in Pooley v National Hone-InOne Association, 89 F.Supp.2d 1108, 1112 (D.Ariz. 200). First, Defendants used Plaintiff's identity by emblazoning Plaintiff's name and likeness across clothing that was manufactured and sold by the company. (GTFM SOCF, Doc. 248, ¶ 90-91). It is undisputed that Defendants manufactured and sold

clothing which prominently displayed Plaintiff's name and/or number. (GTFM SOCF, Doc. 248, ¶ 9091). Defendants clearly profited from the sale of clothing bearing Plaintiff's name and number. Net sales on men's and boy's clothing line alone for the first two years was $22.6 million. (GTFM SOCF, Doc. 248, ¶ 66).

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Defendants did not gain the right to use Plaintiff's name and likeness by entering into the agreement with HGI. Furthermore, Defendants did not contact Plaintiff directly to get his consent to use his name and likeness on the clothing. (GTFM SOCF, Doc. 248, ¶ 92). Also Defendants did not use due diligence when entering into the contract with HGI. (GTFM SOCF, Doc. 248, ¶ 36-38, 80-89, 92). Although Defendants had never before entered into a contract with HGI, Defendants merely believed the assertions of Mannie Jackson that he owned the rights to use Plaintiff's name and likeness, and never looked at Plaintiff's player contract nor did Defendants ask for further proof of Mr. Jackson's assertions. (GTFM SOCF, Doc. 248, ¶ 36-38, 80-89, 92). Nor did Defendants ever contact Plaintiff to confirm HGI's right to license Plaintiff's name and likeness. (GTFM SOCF, Doc. 248, ¶ 92). Additionally, Plaintiff has been injured by Defendants use of his name and likeness. Plaintiff was not compensated for the use of his name and likeness although, had he consented to such use by entering into his own contract with Defendants or another entity, Plaintiff would have been entitled to compensation. Defendants kept all profits that Plaintiff would have been entitled to. (GTFM SOCF, Doc. 248, ¶ 21, 26, 65-70). Additionally, by entering into the licensing agreement, Defendants

effectively took away Plaintiff's right to choose to endorse another product through his celebrity status. Plaintiff is still involved in the sports community through his ministries and charities, and produces his own products containing his name, which Defendants directly competed with. (GTFM SOCF, Doc. 248, ¶ 41). Since Plaintiff has met all of the elements required to prevail on a common law right of

publicity claim, Plaintiff is entitled to a grant of summary judgment in his favor. V. PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON HIS FALSE LIGHT INVASION OF PRIVACY CLAIM. Defendants further argue that Plaintiff is not entitled to summary judgment on his false light invasion of privacy claim because Plaintiff has not met the elements necessary to prove such a claim. However, a false light cause of action arises either when something untrue has been published about the individual or when the publication of true information creates a false implication about the -9Case 2:04-cv-00299-DGC Document 325 Filed 12/15/2005 Page 9 of 12

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individual. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989) (emphasis added). When Defendants used Plaintiff's name on its clothing line for commercial profit, Defendants created a false implication about Plaintiff. Specifically, that he endorsed the clothing line and the FUBU brand on which his name was featured. Also, by featuring Plaintiff's name and likeness on the clothing line, Defendants placed Plaintiff in a false light by holding out to the reasonable person that Plaintiff was involved in the commercial exploitation of his name and likeness purely for profit. Instead, Plaintiff dedicates his life to his ministry and charities and provides free basketballs, autographs, and shirts to the needy each year. (GTFM SOCF, Doc. 248, 79). Lastly, Defendants' conduct would be offensive to the reasonable person because Defendants literally stole Plaintiff's identity by using his name and likeness when Defendants did not have the authority to do so. By creating a false implication about Plaintiff that a reasonable person would find offensive, Defendants became liable to Plaintiff for false light invasion of privacy. summary judgment. VI. CONCLUSION Plaintiff has demonstrated that he will prevail on his claims as a matter of law and therefore he is entitled to summary judgment against Defendants. Therefore, Plaintiff is entitled to

RESPECTFULLY SUBMITTED this 15th day of December 2005. ROSENQUIST & ASSOCIATES

By:

/s/Anders Rosenquist Anders Rosenquist, Jr. Florence M. Bruemmer Attorneys for Plaintiff -10-

Case 2:04-cv-00299-DGC

Document 325

Filed 12/15/2005

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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 December 15th , 2005, a true and correct copy of the foregoing PLAINTIFF MEADOWLARK LEMON'S REPLY TO GTFM, LLC'S AND FUBU THE COLLECTION, LLC'S RESPONSE TO MEADOWLARK LEMON'S MOTION FOR SUMMARY JUDGMENT was sent by postage-prepaid first-class mail, addressed to: 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 Safia A. Anand, Esq. DREIR, LLP 499 Park Avenue New York, NY 10022 Attorneys for Defendants FUBU the Collection, LLC, GTFM of Orlando, LLC and GTFM, LLC Clay Townsend, Esq. Morgan, Colling & Gilbert, PA 20 N. Orange Avenue 16th Floor Orlando, FL 32802 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders Robert W. Goldwater, III, Esq. The Goldwater Law Firm, P.C. 15333 North Pima Road, #225 Scottsdale, Arizona 85260 Attorneys for Plaintiffs Neal, Rivers, Thorton, Hall, Haynes and Sanders -11Document 325 Filed 12/15/2005 Page 11 of 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:04-cv-00299-DGC -12Document 325 Filed 12/15/2005 Page 12 of 12 /s/Florence M. Bruemmer Florence M. Bruemmer 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 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., 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 15th day of December 2005, at Phoenix, Arizona.