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 Defendants GTFM, LLC and FUBU The Collection, 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 MEADOWLARK

LEMON'S 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 defendants

FUBU The Collection, LLC and GTFM, LLC ("GTFM") (collectively the "FUBU Defendants").

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I submit this declaration in Opposition to Plaintiff Meadowlark Lemon's Motion for Summary Judgment (the "Motion"). 2. Other than as expressly indicated, the matters set forth herein are based on

my personal knowledge. 3. commenced. I have been involved in the above-referenced litigations since they were

Upon learning of the player dispute my partner, Steven Gursky, and I both

contacted HGI's counsel. 4. Lemon makes this Motion against GTFM and FUBU The Collection,

LLC; however, Lemon's moving and supporting papers fail to support any claims against FUBU The Collection, LLC. 5. Lemon fails to support any claims against FUBU The Collection, LLC in

the Motion except to state in the beginning that the Motion is submitted against "GTFM, LLC 14 15 16 17 18 19 20 21 that portion of his claims should be dismissed. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 260 2 Filed 11/28/2005 Page 2 of 4 7. Based upon my understanding of controlling law, Lemon's statement in and FUBU the Collection, LLC (hereinafter ... or individually `GTFM' and `FUBU')." (Motion pg. 2). 6. Based upon my review of, and familiarity with the records in this case and

the materials relied upon by Lemon, Lemon has failed to demonstrate that any of the styles at issue used his likeness and/or image, as opposed to his name or alleged jersey number. Therefore, alleged infringement of Lemon's image and/or likeness is not at issue in this case and

his affidavit that "people associate the number 36 with [him]" is insufficient to establish secondary meaning.

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8.

Lemon has not adduced or submitted any evidence that he has achieved

any secondary meaning in his identity (among consumers of the FUBU/HGI Apparel or otherwise) and the defendants do not stipulate to his fame. 9. Based upon the evidence submitted by Lemon, HGI and the FUBU

Defendants, consumers likely believed that the Globetrotters endorsed the FUBU/HGI Apparel, and not that Lemon did so. 10. Lemon relies on the affidavit of Edwin Mutum to state that no "clothing,

especially sports ware (sic), [were] sold with the individual player names on it" (Lemon's SOF ¶ 75). However, Edwin Mutum was never disclosed to Defendants in the discovery process and therefore his testimony is inadmissible. 11. Lemon also relies on the rank hearsay of his Second Amended Complaint

to support certain facts. 14 15 16 17 18 19 20 21 Infringing Goods placed him in a false light that would be highly offensive to a reasonable 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 260 3 Filed 11/28/2005 Page 3 of 4 person. 14. Lemon did not perform any services for GTFM, whether under an 12. Based upon Lemon's own submission, the goods sold by GTFM and those

distributed by Lemon are completely unrelated. Lemon does not claim that he sold any sports and basketball products with his name on it or specify the volume of sales. On the other hand, GTFM only manufactured and sold apparel, some of which contained Lemon's name, not sports and basketball products. 13. Lemon has not submitted any evidence to demonstrate that the Alleged

unenforceable contract, in the absence of a contract, or otherwise, and he has not made any claim to the contrary.

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15.

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

deposition transcript of Lawrence Blenden, dated August 2, 2005. 16. 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. 17. Attached hereto as Exhibit C is a true and correct copy of the Proposed

FUBU-Harlem Globetrotters Licensing Outline. 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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