Free Declaration - District Court of Arizona - Arizona

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Joel L. Herz, Esq. State Bar No. 015105 Law Offices of Joel L. Herz 3573 East Sunrise Drive, Suite 215 Tucson, AZ 85718 Telephone: 520-529-8080 Facsimile: 520-529-8077 Ira S. Sacks, Esq. Safia A. Anand, Esq. Dreier LLP 499 Park Avenue New York, NY 10022 Telephone: 212-328-6100 Facsimile: 212-328-6101 Attorneys for Defendant GTFM, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA MEADOWLARK LEMON, a married man, Plaintiff/Counterdefendant vs. HARLEM GLOBETROTTERS INTERNATIONAL, INC., et al., Defendants/Counterclaimants ) ) ) ) ) ) ) ) ) ) )

Case No. CV 04-0299 PHX-DGC Case No. CV 04-1023-PHX-DGC

DECLARATION OF IRA S. SACKS IN OPPOSITION TO

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
IRA S. SACKS declares as follows under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. I am a partner in the firm of Dreier LLP, attorneys for defendant

GTFM, LLC ("GTFM"). I submit this declaration in Opposition to Plaintiffs Fred "Curly" Neal, Larry "Gator" Rivers, Dallas "Big D" Thornton, Robert "Showboat" Hall, Marques Haynes and 1 Case 2:04-cv-00299-DGC Document 264 Filed 11/28/2005 Page 1 of 4

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James "Twiggy" Sanders' (collectively referred to as "Plaintiffs") Motion for Summary Judgment (the "Motion"). 2. Other than as expressly indicated, the matters set forth herein are based on

my personal knowledge. 3. Based upon my review of, and familiarity with, the records in this case

and the materials relied upon by Plaintiffs, Plaintiffs have failed to demonstrate that any of the styles at issue used their likenesses and/or images, as opposed to their names or alleged jersey numbers. Therefore, alleged infringement of Plaintiffs' images and/or likenesses is not at issue in this case and that portion of their claims should be dismissed. 4. Plaintiffs have not adduced or submitted any evidence that they have

achieved any secondary meaning in their identities (among consumers of the FUBU/HGI Apparel or otherwise) and the defendants do not stipulate to their fame. Therefore, their names

14 15 16 17 18 19 20 21 claims to the contrary. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 264 2 Filed 11/28/2005 Page 2 of 4 7. Plaintiffs have not submitted any evidence to demonstrate that the Alleged cannot serve as trademarks. 5. Based upon the evidence submitted by Plaintiffs, HGI and GTFM,

consumers likely believed that the Globetrotters endorsed the FUBU/HGI Apparel, and not that Plaintiffs did so. 6. Plaintiffs did not perform any services for GTFM, whether under an

unenforceable contract, in the absence of a contract, or otherwise, and they have not made any

Infringing Goods placed them in a false light that would be highly offensive to a reasonable person.

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8.

Attached hereto as Exhibit A is a true and correct copy of an Order, dated

October 7, 2005, stating that no additional production of documents will be required by GTFM related to foreign sales. 9. Attached hereto as Exhibit B is a true and correct copy of the Harlem

Globetrotter Royalty Analysis for the period January 2002 through November 2003. 10. Attached hereto as Exhibit C is a true and correct copy of the Declaration

of Lawrence Blenden, dated October 17, 2005 and filed with the FUBU Defendants' Partial Opposition to Plaintiffs' Motion to Dismiss FUBU The Collection, LLC and GTFM of Orlando, LLC d/b/a FUBU Company Store Without Prejudice on October 18, 2005. 11. Attached hereto as Exhibit D is a true and correct copy of the Declaration

of Bruce Weisfeld, which was filed in support of GTFM's Motion for Summary Judgment, filed October 28, 2005.

14 15 16 17 18 19 20 21 15. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 264 3 Filed 11/28/2005 Page 3 of 4 deposition transcript of James Sanders, dated August 23, 2005. 16. Attached hereto as Exhibit I are true and correct copies of pages from the Attached hereto as Exhibit H are true and correct copies of pages from the 12. Attached hereto as Exhibit E are true and correct copies of pages from the

deposition transcript of Lawrence Blenden, dated August 2, 2005. 13. Attached hereto as Exhibit F are true and correct copies of pages from the

deposition transcript of Peter Gallo, dated September 23, 2005. 14. Attached hereto as Exhibit G are true and correct copies of pages from the

deposition transcript of Oliver Phipps, dated September 23, 2005.

deposition transcript of Fred Neal, dated April 14, 2005.

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17.

Attached hereto as Exhibit J are true and correct copies of pages from the

deposition transcript of Larry Rivers, dated July 19, 2005. 18. Attached hereto as Exhibit K are true and correct copies of pages from the

deposition transcript of Dallas Thornton, dated July 19, 2005. 19. Attached hereto as Exhibit L are true and correct copies of pages from the

deposition transcript of Marques Haynes, dated April 13, 2005. 20. Attached hereto as Exhibit M are true and correct copies of pages from the

deposition transcript of Robert Hall, dated August 23, 2005. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York November 28, 2005 ____/s/ Ira S. Sacks___________ Ira S. Sacks

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