Free Objection - 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 ) ) ) ) ) ) ) ) ) )
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Case No. CV 04-0299 PHX-DGC Case No. CV 04-1023-PHX-DGC

GTFM, LLC'S AND FUBU THE COLLECTION, LLC'S OBJECTIONS TO MEADOWLARLK LEMON'S STATEMENT OF FACTS AND FURTHER STATEMENT OF FACTS PURSUANT TO LOCAL RULE 56.1 Pursuant to Local Rule 56.1(a), defendants GTFM, LLC ("GTFM") and FUBU the Collection, LLC (collectively referred to as the "FUBU Defendants") submit this statement of (i) specific objections to Plaintiff Meadowlark Lemon's Statement of Facts ("Lemon's Statement of Facts"); and (ii) material facts as to which there exists a genuine issue to be tried in opposition to

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Lemon's Motion For Summary Judgment (the "Motion"). Indeed, those facts are undisputed in GTFM's favor and support why the Motion should be denied and GTFM's Motion for Summary Judgment, dated October 24, 2005, should be granted. Objections to Lemon's Statement of Facts Pursuant to Local Rule 56.1(a), the FUBU Defendants specifically object to the following alleged facts submitted in support of Lemon's Motion. 1. The FUBU Defendants take no position as to the allegations set forth in paragraph

1 of Lemon's Statement of Facts, but state that Lemon cannot rely on his Complaint for purposes of a summary judgment motion and any such information is not competent evidence.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 Meadowlark agrees that his picture may be taken for still photographs, motion pictures or television and Meadowlark agrees to appear and take part in interviews and television publicity and other appearances, and to participate in promotional activities of HGI, at such times and places HGI may reasonably designate and agrees that all rights in such pictures, interviews and appearances shall belong to HGI. Meadowlark further agrees that each such interview, appearance and picture and/or his name and/or facsimile of his signature and/or his likeness may be used by HGI in any manner it may desire for the advertising and promotion of any of HGI's athletic teams or other activities or the 2 Filed 11/28/2005 Page 2 of 27 4. The FUBU Defendants dispute the allegations set forth in paragraph 4 of Lemon's 3. The FUBU Defendants do not dispute the allegations set forth in paragraph 3 of 2. The FUBU Defendants take no position as to the allegations set forth in paragraph

2 of Lemon's Statement of Facts.

Lemon's Statement of Facts, but state that Lemon cannot rely on his Complaint for purposes of a summary judgment motion and any such information is not competent evidence.

Statement of Facts. Lemon's last player contract, dated 1975 and effective through 1980, contains the following:

advertising and promotion of the sale of any commercial products or services by HGI or by any other person, firm or corporation which may be licensed or otherwise authorized by HGI to so use such interview, appearance, picture, Meadowlark's name, facsimile of his signature or likeness. The authorization granted in this paragraph by Meadowlark shall not terminate upon the termination of this Agreement or Meadowlark's employment hereunder no matter what the reason, but shall continue in full force and effect thereafter with respect to commitments made by HGI prior to such termination, with respect to interviews and appearances made and pictures taken prior to such termination and with respect to his name, facsimile of his signature and likeness to the extent they are put to the same uses as they were put prior to such termination... (HGI SOF ¶ 18; HGI Ex. 7, ¶15(a)(emphasis added)).1 5. The FUBU Defendants dispute the allegations set forth in paragraph 5 of Lemon's

Statement of Facts and state that Lemon cannot rely on his Complaint for purposes of a summary judgment motion and any such information is not competent evidence. (HGI SOF ¶ 18; HGI Ex. 7 ¶15(a)). 6. The FUBU Defendants dispute the allegations set forth in paragraph 6 of Lemon's

Statement of Facts and state that the FUBU/HGI Apparel was sold openly and notoriously and therefore Lemon should have been aware of the line. 7. The FUBU Defendants do not dispute the allegations set forth in paragraph 7 of

Lemon's Statement of Facts, except state that the number 36 is still worn by Harlem Globetrotters players today. (HGI SOF ¶¶ 8-10). 8. The FUBU Defendants do not dispute the allegations set forth in paragraph 8 of

Lemon's Statement of Facts, except state that the number 36 is still worn by Harlem

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Cites to "HGI SOF ¶ __" or "HGI Ex. __" are to the Statement of Undisputed Facts (and evidence relied upon therein) and to the Exhibits submitted by HGI therewith, respectively, in connection with HGI's motion for summary judgment.

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Globetrotters players today and Lemon has not received ownership or other intellectual property rights in the number 36 through his contract or otherwise. (HGI SOF ¶¶ 8-10, 12). 9. The FUBU Defendants dispute the allegations set forth in paragraph 9 of Lemon's

Statement of Facts and state that Lemon's Affidavit is not competent evidence for purposes of this allegation. Lemon has produced no competent evidence illustrating that the number 36,

standing alone, has acquired secondary meaning, likely caused confusion or led consumers to believe that Lemon approved of the product. In fact, other Harlem Globetrotters have worn the number 36 since Lemon left the team and continue to do so today. (HGI's SOF ¶¶ 8-10, 12, 145-

10 11 12 13 14 notoriously and therefore Lemon should have been aware of the line. The FUBU Defendants 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 4 Filed 11/28/2005 Page 4 of 27
Cites to "GTFM SOF ¶ __" are to the Statement of Undisputed Facts (and evidence relied upon therein) submitted by GTFM, LLC in connection with its motion for summary judgment.
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46, 149-52; GTFM SOF ¶¶ 86-91).2 10. The FUBU Defendants do not dispute the allegations set forth in paragraph 10 of

Lemon's Statement of Facts, but state that the FUBU/HGI Apparel was sold openly and

state further that Lemon cannot rely on his Complaint for purposes of a summary judgment motion and any such information is not competent evidence. 11. The FUBU Defendants take no position as to the allegations set forth in paragraph

11 of Lemon's Statement of Facts and state that the allegations are not material to the FUBU Defendants on their face. The FUBU Defendants state further that Lemon cannot rely on his Complaint for purposes of a summary judgment motion and any such information is not competent evidence.

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12.

The FUBU Defendants dispute the allegations set forth in paragraph 12 of

Lemon's Statement of Facts and state that the inquiry was not sent to the FUBU Defendants. The FUBU Defendants state further that Lemon cannot rely on his Complaint for purposes of a summary judgment motion and any such information is not competent evidence. 13. The FUBU Defendants take no position as to the allegations set forth in paragraph

13 of Lemon's Statement of Facts and state that the inquiry was not sent to the FUBU Defendants and the allegations are immaterial to the FUBU Defendants on their face. 14. The FUBU Defendants do not dispute the allegations set forth in paragraph 14 of

Lemon's Statement of Facts. 15. The FUBU Defendants do not dispute the allegations set forth in paragraph 15 of

Lemon's Statement of Facts, except for the misspelling of the word "signed." 16. The FUBU Defendants dispute the allegations set forth in paragraph 16 of

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Cites to "Sacks October 24, 2005 Decl. ¶ ___ or Ex. ___" are to the Declaration of Ira S. Sacks and the exhibits attached thereto, dated October 24, 2005, and submitted by GTFM, LLC in connection with its motion for summary judgment.
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Lemon's Statement of Facts because it is an incomplete description of the License Agreement. The FUBU Defendants state that GTFM licensed a bundle of rights from HGI of which the names and likenesses of any and all players who have played for the Harlem Globetrotters were only a small portion of those rights. (HGI SOF ¶¶ 64-65, 67-68; Sacks October 24, 2005 Decl., Ex. A).3

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17.

The FUBU Defendants take no position as to the allegations set forth in paragraph

17 of Lemon's Statement of Facts, except do not dispute that GTFM paid HGI a royalty for the sale of the FUBU/HGI Apparel. (GTFM SOF ¶ 6; Sacks October 24, 2005 Decl., Ex. A). 18. The FUBU Defendants dispute the allegations set forth in paragraph 18 of

Lemon's Statement of Facts, except do not dispute that GTFM paid HGI a royalty for the sale of the FUBU/HGI Apparel. (GTFM SOF ¶ 6; Sacks October 24, 2005 Decl., Ex. A). 19. The FUBU Defendants dispute the allegations set forth in paragraph 19 of

Lemon's Statement of Facts and state that HGI was paid a total of $1,723,018.41 between June 7, 2002 and September 19, 2003. (Sacks Decl. Ex. B). 20. The FUBU Defendants dispute the allegations set forth in paragraph 20 of

Lemon's Statement of Facts that the Harlem Globetrotters clothing was a part of the Platinum FUBU Line. (Lemon's Exhibit R). 21. The FUBU Defendants dispute the allegations set forth in paragraph 21 of

Lemon's Statement of Facts that Mr. Weisfeld is a practicing lawyer by training and to correct the misspelling of "Weisfeld." (Lemon's Exhibit F, pg. 62). 22. The FUBU Defendants dispute the allegations set forth in paragraph 22 of

Lemon's Statement of Facts, except do not dispute that GTFM, Inc. is the holding company for the trademark FUBU. GTFM, Inc. and FUBU The Collection, LLC have no connection,

operationally or financially, with the Harlem Globetrotters; the License Agreement is with

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GTFM, LLC. (Sacks October 24, 2005 Decl., Ex. A; FTC and Orlando Renewed SOF ¶¶ 9-11, 14, 23-27).4 23. The FUBU Defendants dispute the allegations set forth in paragraph 23 of

Lemon's Statement of Facts and state that Lemon has set forth no evidence in support of this allegation. Indeed, the evidence is to the contrary. (FTC and Orlando Renewed SOF ¶¶ 9-11, 14, 23, 26). 24. The FUBU Defendants dispute the allegations set forth in paragraph 24 of

Lemon's Statement of Facts and state that the License Agreement was not entered into until June 1, 2002, and that the first sales occurred after June 1, 2002. (GTFM SOF ¶ 1; Sacks October 24, 2005 Decl., Ex. A). 25. The FUBU Defendants dispute the allegations set forth in paragraph 25 of

Lemon's Statement of Facts, except do not dispute that a clothing line with some styles bearing Lemon's name and/or the number 36 have been marketed, offered for sale and/or sold in interstate commerce in the United States. 26. The FUBU Defendants dispute the allegations set forth in paragraph 26 of

Lemon's Statement of Facts and state that Lemon has no evidence to the extent to which hangtags were used on the apparel or that the hangtags were used as a marketing tool. (GTFM SOF ¶¶ 93-94).

References to "FTC and Orlando Renewed SOF ¶ __" refer to FUBU The Collection, LLC's and GTFM of Orlando, LLC d/b/a FUBU Company Store's Statement of Facts filed on October 24, 2005 in support of their Motion for Summary Judgment.

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27.

The FUBU Defendants dispute the allegations set forth in paragraph 27 of

Lemon's Statement of Facts and state that Lemon has no evidence regarding the extent to which hangtags were used on the apparel. (GTFM SOF ¶¶ 93-94). 28. The FUBU Defendants do not dispute the allegations set forth in paragraph 28 of

Lemon's Statement of Facts that Mr. Weisfeld estimated during his deposition that the total wholesale value of all HGI Apparel was approximately twenty million dollars. 29. The FUBU Defendants dispute the allegations set forth in paragraph 29 of

Lemon's Statement of Facts and state that the Licensing Outline, which was only used to aid in the negotiation of the License Agreement, estimated a projected sales volume of twenty million dollars. (Sacks Decl. Ex. C). 30. The FUBU Defendants dispute the allegations set forth in paragraph 30 of

Lemon's Statement of Facts and state that the royalty analysis from GTFM for January 2002 through November 2003 shows net sales for the men's and boy's line to be approximately $22.6 million before subtracting the sample shipments. (Sacks Decl., Ex. B). 31. The FUBU Defendants dispute the allegations set forth in paragraph 31 of

Lemon's Statement of Facts and state that support for those alleged facts is inadmissible hearsay. 32. The FUBU Defendants dispute the allegations set forth in paragraph 32 of

Lemon's Statement of Facts and state that support for those alleged facts is inadmissible hearsay. 33. The FUBU Defendants dispute the allegations set forth in paragraph 33 of

Lemon's Statement of Facts and state that support for those alleged facts is inadmissible hearsay.

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34.

The FUBU Defendants dispute the allegations set forth in paragraph 34 of

Lemon's Statement of Facts, except do not dispute that CADS were shown to Bruce Weisfeld, Norman Weisfeld and Daymond Aurum for approval and in some instances sent to Mannie Jackson for approval. (Lemon Exhibit F, pgs. 98-99). 35. The FUBU Defendants state that the allegations set forth in paragraph 35 are

immaterial and state that on occasion apparel was shown to HGI. 36. The FUBU Defendants dispute the allegations set forth in paragraph 36, except do

not dispute that that Mr. Aurum looked at a few styles, but not on behalf of FUBU The Collection, LLC. 37. The FUBU Defendants dispute the allegations set forth in paragraph 37, except do

not dispute that Mr. Aurum looked at a few styles, but not on behalf of FUBU The Collection, LLC. 38. The FUBU Defendants state that the allegations set forth in paragraph 38 are

immaterial and that GTFM had no obligation to contact plaintiff. 39. The FUBU Defendants take no position on the allegations set forth in paragraph

39 but state that pursuant to the 1975 contract, HGI has the right to use Lemon's "name, facsimile of his signature and likeness to the extent they are put to the same uses as they were put prior to the termination of the contract." (HGI SOF ¶ 18; HGI Ex. 7 ¶ 15(a)). 40. The FUBU Defendants dispute the allegations set forth in paragraph 40 of

Lemon's Statement of Facts, except state that HGI purported to terminate the contract for various reasons. 9 Document 258 Filed 11/28/2005 Page 9 of 27

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41.

The FUBU Defendants state that Lemon has no admissible evidence to support

the allegations set forth in paragraph 41 of Lemon's Statement of Facts and that the allegations set forth therein are immaterial. 42. The FUBU Defendants dispute the allegations set forth in paragraph 42 of

Lemon's Statement of Facts and state that GTFM's counsel contacted HGI upon learning of the player dispute. (Sacks Decl. ¶ 3). 43. The FUBU Defendants dispute the allegations set forth in paragraph 43 of

Lemon's Statement of Facts and state that Mr. Blenden testified that nothing was done outside of the normal course of the License Agreement as a result of this lawsuit. (Blenden Tr. 154-59).5 44. The FUBU Defendants dispute the allegations set forth in paragraph 43 of

Lemon's Statement of Facts because it is incomplete, but do not dispute that the License Agreement between HGI and GTFM was the first contract between them. 45. The FUBU Defendants do not dispute the allegations set forth in paragraph 45 of

Lemon's Statement of Facts. 46. The FUBU Defendants dispute the allegations set forth in paragraph 46 of

Lemon's Statement of Facts and state that GTFM relied upon outside counsel to conduct its due diligence, relied upon the substantial representations and indemnities in the License Agreement, and upon entering into the License Agreement GTFM was aware that HGI had been using and licensing the rights to the names and likenesses of players and former players for decades and

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was not aware of any complaints regarding such uses. Furthermore, when deciding whether to enter into the License Agreement, GTFM relied on the representations and indemnification provisions of the License Agreement, and the fact that no player had ever sued the Globetrotters for misuse of their names and/or likenesses. (GTFM SOF ¶¶ 21-25; Blenden Tr. 17, 28-29, 86). 47. The FUBU Defendants dispute the allegations set forth in paragraph 47 of

Lemon's Statement of Facts, except do not dispute that the License Agreement included an indemnification clause. (GTFM SOF ¶¶ 21-22). 48. The FUBU Defendants dispute the allegations set forth in paragraph 48 of

Lemon's Statement of Facts, except do not dispute that GTFM requested an indemnity provision in the License Agreement. Upon being told that HGI owned the right to the use of the names and likenesses of all Harlem Globetrotter players and former players, GTFM asked to see the player contracts. They were told that, because of the Globetrotters' bankruptcy, the contracts could not

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References to "Blenden Tr. __" refer to deposition transcript pages from the deposition of Lawrence Blenden, attached to the accompanying Sacks Decl. as Exhibit A.
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be located. GTFM went forward because of the representations and indemnities in the License Agreement to protect GTFM. (GTFM SOF ¶ 22 n.5). 49. The FUBU Defendants dispute the allegations set forth in paragraph 49 of

Lemon's Statement of Facts and state that upon being told that HGI owned the right to the use of the names and likenesses of all Harlem Globetrotter players and former players, GTFM asked to see the player contracts. They were told that, because of the Globetrotters' bankruptcy, the

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contracts could not be located.

GTFM went forward because of the representations and

indemnities in the License Agreement to protect GTFM. (GTFM SOF ¶ 22 n.5). 50. The FUBU Defendants dispute the allegations set forth in paragraph 50 of

Lemon's Statement of Facts and state that upon being told that HGI owned the right to the use of the names and likenesses of all Harlem Globetrotter players and former players, GTFM asked to see the player contracts. They were told that, because of the Globetrotters' bankruptcy, the contracts could not be located. GTFM went forward because of the representations and

indemnities in the License Agreement to protect GTFM. (GTFM SOF ¶ 22 n.5). 10 11 12 13 14 Agreement, and upon entering into the License Agreement GTFM was aware that HGI had been 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 53. The FUBU Defendants do not dispute the allegations set forth in paragraph 53 of 52. The FUBU Defendants dispute the allegations set forth in paragraph 52 of using and licensing the rights to the names and likenesses of players and former players for decades and was not aware of any complaints regarding such uses. Furthermore, when deciding whether to enter into the License Agreement, GTFM relied on the representations and indemnification provisions of the License Agreement, and the fact that no player had ever sued the Globetrotters for misuse of their names and/or likenesses. (GTFM SOF ¶¶ 21-25). 51. The FUBU Defendants dispute the allegations set forth in paragraph 51 of

Lemon's Statement of Facts and state that GTFM relied upon its outside counsel to conduct its due diligence, relied upon the substantial representations and indemnities in the License

Lemon's Statement of Facts. Mr. Blenden merely testified that he does not recall whether he reviewed any player contracts. (Lemon's Exhibit G, pg. 36).

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54.

The FUBU Defendants dispute the allegations set forth in paragraph 54 of

Lemon's Statement of Facts and state that HGI represented, warranted and covenanted in the License Agreement that it was the sole owner to "the name, professional name, nickname, recorded voice, biographical material, signature facsimile, portraits, pictures and likenesses of any and all player who have played for the Harlem Globetrotters, or who hereafter play for the Harlem Globetrotters during the Term, other than Wilt Chamberlain and Magic Johnson." The FUBU Defendants state further that GTFM and its outside counsel made as much of an independent determination about HGI's representations, warranties and covenants as it could. (GTFM SOF ¶¶ 1-3, 21-25; Blenden Tr. 17, 28-29, 86). 55. The FUBU Defendants dispute the allegations set forth in paragraph 55 of

Lemon's Statement of Facts and state that although much of the negotiation and due diligence concerning the License Agreement was done by GTFM's outside counsel (Blenden Tr. 17, 2829, 86), GTFM was aware that HGI had been using and licensing the rights to the names and likenesses of players and former players for decades and was not aware of any complaints regarding such uses. Furthermore, when deciding whether to enter into the License Agreement, GTFM relied on the representations and indemnification provisions of the License Agreement, and the fact that no player had ever sued the Globetrotters for misuse of their names and/or likenesses. (GTFM SOF ¶¶ 21-25). 56. The FUBU Defendants do not dispute the allegations set forth in paragraph 56 of

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57.

The FUBU Defendants dispute the allegations set forth in paragraph 57 of

Lemon's Statement of Facts, except do not dispute that no one from GTFM contacted any player directly. 58. The FUBU Defendants dispute the allegations set forth in paragraph 58 of

Lemon's Statement of Facts and state that Mr. Aurum had no obligation to contact any of the former Harlem Globetrotters about their approval. 59. The FUBU Defendants do not dispute the allegations set forth in paragraph 59 of

Lemon's Statement of Facts. 60. The FUBU Defendants dispute the allegations set forth in paragraph 60 of

Lemon's Statement of Facts, except do not dispute that Mannie Jackson may have told Mr. Blenden that he was going to give the players some money, but he also said that he typically gave the older players money. (Lemon Exhibit G, pg. 44). 61. The FUBU Defendants dispute the allegations set forth in paragraph 61 of

Lemon's Statement of Facts. Daymond Aurum is CEO of GTFM, Inc., GTFM, LLC and FUBU The Collection, LLC, among others. Mr. Aurum is in charge or marketing, looking over

distribution and product placement on artists for GTFM, LLC, not FUBU The Collection, LLC. 62. The FUBU Defendants dispute the allegations set forth in paragraph 62 of

Lemon's Statement of Facts. When the idea to enter into a line of clothing with HGI came up, Mr. Aurum attended meetings in his role as CEO of GTFM, Inc. and GTFM, LLC, approved of the idea and thought it would be a good next step to GTFM's Platinum line.

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63.

The FUBU Defendants do not dispute the allegations set forth in paragraph 63 of

Lemon's Statement of Facts. 64. The FUBU Defendants dispute the allegations set forth in paragraph 64 of

Lemon's Statement of Facts and state that Mr. Syracuse is responsible for the financial integrity of HGI's assets and accounting records. (Lemon Exhibit J, pg. 11). 65. The FUBU Defendants dispute the allegations set forth in paragraph 65 of

Lemon's Statement of Facts and state that Mr. Syracuse testified that, when he drafted the October 31, 2003 letter, he was not aware of any possible lawsuits. (Lemon Exhibit J, pgs. 3334). 66. The FUBU Defendants do not dispute the allegations set forth in paragraph 66 of

Lemon's Statement of Facts. 67. The FUBU Defendants do not dispute the allegations set forth in paragraph 67 of

16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 15 Filed 11/28/2005 Page 15 of 27 69. The FUBU Defendants dispute the allegations set forth in paragraph 69 of Lemon's Statement of Facts. 68. The FUBU Defendants do not dispute the allegations set forth in paragraph 68 of

Lemon's Statement of Facts.

Lemon's Statement of Facts. The presentation of the allegations set forth in paragraph 69 of Lemon's Statement of Facts is misleading and immaterial for purposes of this Motion and distorts the evidence cited.

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70.

The FUBU Defendants dispute the allegations set forth in paragraph 70 of

Lemon's Statement of Facts. The presentation of the allegations set forth in paragraph 70 of Lemon's Statement of Facts is misleading and immaterial for purposes of this Motion and distorts the evidence cited. 71. The FUBU Defendants dispute the allegations set forth in paragraph 71 of

Lemon's Statement of Facts. The presentation of the allegations set forth in paragraph 71 of Lemon's Statement of Facts is misleading and immaterial for purposes of this Motion and distorts the evidence cited.

10 11 12 13 14 distorts the evidence cited. 15 16 17 18 19 20 21 22 23 Lemon's Statement of Facts is misleading and immaterial for purposes of this Motion and 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 16 Filed 11/28/2005 Page 16 of 27 distorts the evidence cited. distorts the evidence cited. 74. The FUBU Defendants dispute the allegations set forth in paragraph 74 of 73. The FUBU Defendants dispute the allegations set forth in paragraph 73 of 72. The FUBU Defendants dispute the allegations set forth in paragraph 72 of

Lemon's Statement of Facts. The presentation of the allegations set forth in paragraph 72 of Lemon's Statement of Facts is misleading and immaterial for purposes of this Motion and

Lemon's Statement of Facts. The presentation of the allegations set forth in paragraph 73 of Lemon's Statement of Facts is misleading and immaterial for purposes of this Motion and

Lemon's Statement of Facts. The presentation of the allegations set forth in paragraph 74 of

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75.

The FUBU Defendants state that they have no knowledge about the allegations set

forth in paragraph 75 of Lemon's Statement of Facts and object to Lemon's use of the Affidavit of Edwin Mutum because he was not disclosed during discovery as required by Rule 26 of the Federal Rules of Civil Procedure. 76. The FUBU Defendants dispute the allegation set forth in paragraph 76 of

Lemon's Statement of Facts and state that HGI used and licensed Lemon's name and likeness in a variety of ways while he was a player and continue to use Lemon's name and likeness in various ways today. (HGI SOF ¶¶ 24-39, 59; GTFM SOF ¶¶ 27-30).

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 17 Filed 11/28/2005 Page 17 of 27 80. The FUBU Defendants take no position as to the allegations set forth in paragraph 79. The FUBU Defendants take no position as to the allegations set forth in paragraph 78. The FUBU Defendants take no position as to the allegations set forth in paragraph 77. The FUBU Defendants dispute the allegations set forth in paragraph 77 of

Lemon's Statement of Facts as unsupported by the evidence cited and states that these allegations are immaterial.

78 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants.

79 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants.

80 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants.

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81.

The FUBU Defendants take no position as to the allegations set forth in paragraph

81 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. 82. The FUBU Defendants take no position as to the allegations set forth in paragraph

82 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. 83. The FUBU Defendants take no position as to the allegations set forth in paragraph

83 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. 84. The FUBU Defendants take no position as to the allegations set forth in paragraph

84 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. 85. The FUBU Defendants do not dispute the allegations set forth in paragraph 85 of

Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. 86. The FUBU Defendants have no knowledge as to the allegations set forth in

paragraph 86 of Lemon's Statement of Facts, except state that GTFM paid HGI royalties for the sale of the FUBU/HGI Apparel. (GTFM SOF ¶ 6; Sacks October 24, 2005 Decl., Ex. A). 87. The FUBU Defendants do not dispute the allegations set forth in paragraph 87 of

Lemon's Statement of Facts.

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88.

The FUBU Defendants take no position as to the allegations set forth in paragraph

88 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. 89. The FUBU Defendants take no position as to the allegations set forth in paragraph

89 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. The FUBU Defendants state further that the allegations set forth in paragraph 89 of Lemon's Statement of Facts are a matter of law, not

90.

The FUBU Defendants take no position as to the allegations set forth in paragraph

90 of Lemon's Statement of Facts and state that these allegations are immaterial to any of the claims or defenses relating to the FUBU Defendants. The FUBU Defendants state further that the allegations set forth in paragraph 90 of Lemon's Statement of Facts are a matter of law, not

15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 19 Filed 11/28/2005 Page 19 of 27 Pursuant to Rule 56.1(a), the FUBU Defendants provide the following statement of facts setting forth those material facts, which are, at the very least, in dispute, and therefore why the Motion should be denied. Indeed, since many of these facts are undisputed in the FUBU Defendants' favor, GTFM's pending Motion for Summary Judgment, dated October 24, 2005, should be granted. fact. The FUBU Defendants' Statement Pursuant to Local Civil Rule 56.1(a)

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Lemon Has Failed to Assert Any Claims Against FUBU The Collection, LLC 1. Lemon makes this Motion against GTFM and FUBU The Collection, LLC;

however, Lemon fails to support any claims against FUBU The Collection, LLC. (Sacks Decl. ¶ 4). 2. Lemon's Motion states that "GTFM Is Liable To Plaintiff For Unfair

Competition, False Designation of Origin and Misappropriation Pursuant To Section 43(a) Of The Lanham Act, 15 U.S.C. §1125(a)." (Motion, pg. 7). 3. Lemon's Motion also states that (i) "GTFM Is Liable To Plaintiff For Common

Law Invasion Of The Right Of Publicity"; (ii) "HGI and GTFM Have Been Unjustly Enriched And Has (sic) Benefited At The Expense Of Plaintiff, And Therefore, Plaintiff Is Entitled, In Quantum Meruit, To The Amount By Which HGI Has Been Unjustly Enriched; and (iii) "GTFM Is Liable To Plaintiff For False Light Invasion of Privacy." (Motion, pgs. 10, 12, 14). 4. 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 and FUBU the Collection, LLC (hereinafter ... or individually `GTFM' and `FUBU')." (Motion pg. 2; Sacks Decl. ¶ 5). Lemon Has Not Demonstrated Any Use of His Likeness and/or Image 5. 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 that portion of his claims should be dismissed. (Sacks Decl. ¶ 6). 20 Document 258 Filed 11/28/2005 Page 20 of 27

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Lemon Has Not Adduced Any Evidence of Secondary Meaning in the Number 36 6. Lemon has produced no evidence illustrating that the number 36, standing alone,

has acquired secondary meaning, caused confusion or led consumers to believe that Lemon approved of the product. (HGI's SOF ¶¶ 8-10, 12, 145-46, 149-52; GTFM SOF ¶¶ 86-91). 7. Lemon's statement in his affidavit that "people associate the number 36 with

[him]" is insufficient. (Sacks Decl. ¶ 7). 8. Other Harlem Globetrotters have worn the number 36 since Lemon left the team

and continue to do so today. (HGI SOF ¶¶ 8-10, 12). Lemon's Failure To Prove Secondary Meaning or Likely Confusion 9. Lemon has not adduced any evidence that he has achieved any secondary

meaning in his identity (among consumers of the FUBU/HGI Apparel or otherwise) and the parties have not stipulated to his fame. (HGI SOF ¶¶ 96, 115, 146, 148; GTFM SOF ¶¶ 86-88, 90-91; Sacks Decl. ¶ 8). 10. Lemon has adduced no evidence of likely confusion. (HGI SOF ¶¶ 93-96, 145,

147-153, 155; GTFM SOF ¶¶ 86-91). 11. Lemon has not produced any evidence indicating that his name was used for

advertising the FUBU/HGI Apparel or that it was likely that consumers mistakenly believed that Lemon was connected with the FUBU/HGI Apparel. (HGI SOF ¶¶ 93, 95, 145, 147-52).

21 Document 258 Filed 11/28/2005 Page 21 of 27

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ¶85).

12.

Lemon does not have any evidence of public recognition linking him with the

Apparel and Lemon has not procured testimony of actual consumers of the Apparel stating that they associate the Apparel with him. (HGI SOF ¶¶ 93-96, 145; GTFM SOF ¶¶ 86-91). 13. Lemon has conceded that he does not advertise his Alleged Trademarks and has

not licensed his name since he ceased playing for the Globetrotters. (GTFM SOF ¶ 32; HGI SOF ¶¶ 115, 147). 14. It is undisputed that Lemon's name is not a registered trademark. (GTFM SOF

15.

There is no evidence that Lemon uses his alleged mark on apparel or sold any

products using the alleged mark. (HGI SOF ¶ 115, 147; GTFM SOF ¶ 32). 16. Lemon has not produced any evidence showing that he has licensed his name at

all, or used or advertised his name on apparel. (HGI SOF ¶¶ 115, 147; GTFM SOF ¶ 32). 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 22 Filed 11/28/2005 Page 22 of 27 18. There is no evidence that the limited styles that had Lemon's name sold because 17. Lemon has not entered into a licensing agreement of any significance in the last

seven years and was not looking for any. Moreover, Lemon is not a party to a licensing agreement for clothes, shoes or otherwise. (HGI SOF ¶¶ 115, 147; GTFM SOF ¶ 32).

of the strength of Lemon's name, instead of as a result of the FUBU and Harlem Globetrotters' marks. (HGI SOF ¶ 155).

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 27 28

19.

Lemon has not submitted any surveys or consumer testimony to show that

consumers thought that these products were associated with him. (HGI SOF ¶¶ 93-96, 145-152, 155). 20. Lemon has admitted that he lacks any documentation that would indicate the

Apparel is likely to or has caused consumer confusion. (HGI SOF ¶ 95). 21. Lemon does not claim that he sold sports and basketball products with his name

on it. (Sacks Decl. ¶ 12). 22. Lemon has not specified the volume of sales by him of sports and basketball

products with his name on it. (Sacks Decl. ¶ 12). 23. GTFM only manufactured and sold apparel, some of which contained Lemon's

name, not sports and basketball products. (Sacks Decl. ¶ 12). 24. The FUBU/HGI Apparel prominently featured the Globetrotters' name and

trademarks, as well as the FUBU trademarks. (HGI SOF ¶ 77, 155; GTFM SOF ¶ 4). 25. Consumers likely believed that the Globetrotters endorsed the FUBU/HGI

Apparel, and not that Lemon did so. (Sacks Decl. ¶ 9). 26. The License Agreement expired on November 30, 2004 and permitted GTFM a

one hundred eighty (180) day sell-off period. (GTFM SOF ¶ 7). 27. GTFM is not currently manufacturing and/or selling any Alleged Infringing

FUBU/HGI Apparel and will not do so in the future. (GTFM SOF ¶ 8).

23 Document 258 Filed 11/28/2005 Page 23 of 27

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Lemon's Lack of Evidence 28. 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). 29. Edwin Mutum was never disclosed to Defendants in the discovery process and

therefore his testimony is inadmissible. (Sacks Decl. ¶ 10). 30. Lemon also relies on the rank hearsay of his Second Amended Complaint to

support certain facts. (Sacks Decl. ¶ 11). HGI's Use of Lemon's Alleged Trademarks 31. Lemon's 1975 Contract states that the Harlem Globetrotters have the right to use

his "name, likeness, and player number to the extent they are put to the same uses as they were put prior to the termination of the contract." (Motion, pg. 9). 32. The Globetrotters used and licensed Lemon's name and likeness in a variety of

ways while he was a player and still continue to do so. (HGI SOF ¶¶ 24-39, 59; GTFM SOF ¶¶ 27-30). GTFM's Intent in Entering Into the License Agreement 33. Lemon has not adduced any evidence to suggest that GTFM willfully infringed

his rights. (GTFM SOF ¶ 98). 34. Much of the negotiation and due diligence concerning the License Agreement was

done by GTFM's outside counsel. (Blenden Tr. 17, 28-29, 86). 24 Document 258 Filed 11/28/2005 Page 24 of 27

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35.

GTFM did not enter into the License Agreement blindly. GTFM was aware that

HGI had been using and licensing the rights to the names and likenesses of players and former players for decades and was not aware of any complaints regarding such uses. When deciding whether to enter into the License Agreement, GTFM relied on the representations and indemnification provisions of the License Agreement, and the fact that no player had ever sued the Globetrotters for misuse of their names and/or likenesses. (GTFM SOF ¶¶ 21-25). 36. Upon being told that HGI owned the right to the use of the names and likenesses

of all Harlem Globetrotter players and former players, GTFM asked to see the player contracts. 10 11 12 13 14 Lemon Was Not Injured 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 258 25 Filed 11/28/2005 Page 25 of 27 40. Lemon received a check from HGI for certain styles. (GTFM SOF ¶ 34). 39. SOF ¶ 33). Lemon has not lost any income as a result of the FUBU/HGI Apparel. (GTFM 38. Lemon did not suffer any loss of income as a result of GTFM's actions. (GTFM 37. Lemon did not perform any services for GTFM, whether under an unenforceable They were told that, because of the Globetrotters' bankruptcy, the contracts could not be located. GTFM went forward because of the representations and indemnities in the License Agreement to protect GTFM. (GTFM SOF ¶ 22 n.5).

contract, in the absence of a contract, or otherwise, and he has not made any claim to the contrary. (Sacks Decl. ¶ 14).

SOF ¶¶ 33, 91, 97; HGI SOF ¶¶ 103-04).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 92). 16 17 18 19 20 21 22 23 24 25 26 27 28

41.

The only monetary recovery Lemon seeks from GTFM is disgorgement of

GTFM's profits. (GTFM SOF ¶¶ 82-83). 42. Lemon has not offered any evidence as to the fair market value of the use of his

Alleged Trademarks; indeed, he has specifically eschewed such a claim. (GTFM SOF ¶¶ 95-96). 43. Lemon has claimed that he was embarrassed by the sale of the Alleged Infringing

Goods because the Globetrotters did not consult him before using his name, alleged jersey number, likeness and/or image. (GTFM SOF ¶ 26). 44. Lemon has not submitted any evidence to demonstrate that the Alleged Infringing

Goods placed him in a false light that would be highly offensive to a reasonable person. (Sacks Decl. ¶ 13). 45. Lemon testified that the FUBU/HGI Apparel "looked pretty good." (HGI SOF ¶

DATED: November 28, 2005 ____/s/ Ira S. Sacks___________ 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 (Pro Hac Vice) Joel L. Herz, Esq. State Bar Number 015105 La Paloma Corporate Center 3573 E. Sunrise Dr., Suite 215 Tucson, Arizona 85718-3206 Telephone: 520-529-8080 Facsimile: 520-529-8077 26 Document 258 Filed 11/28/2005 Page 26 of 27

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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 27 28 Case 2:04-cv-00299-DGC Document 258 27 Filed 11/28/2005 Page 27 of 27 Attorneys for Defendants GTFM, LLC and FUBU The Collection, LLC