Free Motion for Summary Judgment - 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

MEADOWLARK LEMON, a married man, Plaintiff, vs.

No. CV '04 0299 PHX DGC

HARLEM GLOBETROTTERS INTERNATIONAL, PLAINTIFF'S MOTION FOR INC., an Arizona corporation; HARLEM SUMMARY JUDGMENT 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.

HARLEM GLOBETROTTERS INTERNATIONAL, 18 INC., an Arizona corporation, 19 20 vs. 21 MEADOWLARK LEMON, a married man, 22 23 24 25 26 Plaintiff Meadowlark Lemon (hereinafter "Mr. Lemon" or "Plaintiff"), by and through his attorneys and pursuant to Fed.R.Civ.P. 56, hereby submits his Motion for Summary Judgment against Harlem Globetrotters International, Inc. (hereinafter collectively with other party Defendants as Case 2:04-cv-00299-DGC Document 197 Filed 10/28/2005 Page 1 of 19 Counterdefendant. Counter-claimant,

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"Defendants" or individually "HGI") and GTFM, LLC and FUBU the Collection LLC (hereinafter collectively with other party Defendants as "Defendants" or individually "GTFM" and "FUBU"). The Court should enter summary judgment for Plaintiff on all counts enumerated in the Complaint, because no genuine dispute of material facts exists. The following Memorandum of Points and Authorities and Statement of Facts (hereinafter "S.O.F.") incorporated by reference support this motion. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff was employed in various capacities, including playing basketball, and doing public relations for various and different companies owning the "Harlem Globetrotters" basketball team for the period of 1957 to 1979. SOF ¶ 1, 2. However, Plaintiff is no longer involved or employed with the Harlem Globetrotter organization. SOF ¶ 3. In June 2002, HGI entered into an agreement with GTFM to license, develop, create, produce, manufacture, market, promote, sell, and distribute apparel products, goods, and other merchandise, and under the agreement HGI authorized the use of the names and likenesses of any and all players who have played for the Harlem Globetrotters, or who thereafter play for the Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. SOF ¶ 15, 16. GTFM then began manufacturing and selling a Harlem Globetrotters clothing line beginning sometime in 2001 or 2002. SOF ¶ 24. The clothing line bore Plaintiff's name, likeness, and player number and has been marketed, offered for sale and sold in interstate commerce in the United States and other countries. SOF ¶ 25. Additionally, Harlem Globetrotter's apparel sold by GTFM had hangtags listing the specific players' names, including Meadowlark Lemon, which were used as marketing tools. SOF ¶ 26. The clothing bearing Plaintiff's name, likeness, and player number sold very well, and was the highest selling of all players. SOF ¶ 33. Both GTFM and HGI made a substantial profit from selling the apparel bearing Plaintiff's name and likeness. SOF ¶ 17-19, 28-32. Although the contract between HGI and GTFM did

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not mention the use of any specific player names, executives from both HGI and GTFM looked at samples of the clothing and gave approvals before the clothing was manufactured. SOF ¶ 36-37. Furthermore, even though his was GTFM's first contract with HGI, GTFM simply accepted Mannie Jackson's assertions that he owned the right to use Plaintiff's name, likeness, and player number, without even looking at Plaintiff's contracts with HGI. SOF ¶ 45. Specifically, Mannie Jackson stated that all past Harlem Globetrotter players signed a contract with the original Harlem Globetrotter's owner, in which the players signed away their rights in perpetuity for the use of their names and likenesses. SOF ¶ 45. GTFM then just simply trusted that Mannie Jackson, as CEO and owner of the Harlem Globetrotters, had the right to use Plaintiff's name and likeness. SOF ¶ 46. In fact, GTFM included an indemnification agreement in their contract with HGI regarding past, present, or future Globetrotter's players because GTFM did not receive every player's contract that played for the Globetrotter's and did not want to review the player contracts that existed for Plaintiff. SOF ¶ 47-48. Only a sample player contract was attached to the contract between GTFM and HGI, and GTFM never expressed any concern that there were many players but they were only provided with one contract. SOF ¶ 49-58. Plaintiff became aware that a clothing line of sports apparel was being manufactured and sold featuring his name and player number when he witnessed many fans wearing the clothing at the ceremony in which Plaintiff was being inducted into the Basketball Hall of Fame where his player number "36" was retired. SOF ¶ 10. Then, on December 23, 2003, Plaintiff forwarded sent a letter to HGI and Mannie Jackson, requesting any and all documentation which they are relying on that gives Defendants or any other entity authorization to use Plaintiff's name, image, likeness, number, notoriety, and goodwill. SOF ¶ 11. Defendants did not respond to the inquiry at all which forced Plaintiff to file this lawsuit. SOF ¶ 12. Then, on September 15, 2004, counsel for HGI sent a letter to Plaintiff's counsel stating that HGI was relying on a paragraph contained in Plaintiff's 1975 contract as the authority to use/license Plaintiff's name, likeness, and player number on a clothing line. SOF ¶ 13. However, that excerpted -3Document 197

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paragraph from Plaintiff's 1975 Contract states that the Harlem Globetrotters only have the right to use Plaintiff's 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. SOF ¶ 13. There is no agreement or contract between Plaintiff and HGI or GTFM in which Plaintiff gave HGI or GTFM the right to use his name, likeness, and player number in a clothing line. SOF ¶ 5. Plaintiff never signed a contract with the original Harlem Globetrotter's owner or HGI, in which he signed away his rights in perpetuity for the use of his name and likeness. SOF ¶ 4. Furthermore, no one from GTFM or HGI contacted Plaintiff for his input or approval regarding the agreement between GTFM and HGI or the clothing produced pursuant thereto. SOF ¶ 57. If not stopped, HGI will continue to use Plaintiff's name and likeness for commercial benefit. SOF ¶ 39. In fact retailers are currently selling the Platinum FUBU Harlem Globetrotters clothing line bearing Plaintiff's name. SOF ¶ 41. Plaintiff is the most recognizable Harlem Globetrotter player, and is a celebrity in his own right. SOF ¶ 69-72. Aside from the FUBU clothing line and a licensing agreement for some bobble head dolls, which are not a part of this lawsuit, HGI has not been involved in utilizing the plaintiffs names and likenesses. SOF ¶ 67. In fact, not even the clothing sold in the arenas at Harlem Globetrotters events contains Plaintiff's name, likeness and player number. SOF ¶ 77. Plaintiff is the only person who owns the rights to his name, likeness and player number and is the only person who may license their use on any products. SOF ¶ 4-5. II. ARGUMENT The Court should grant Plaintiff's Motion for Summary Judgment because there is no issue as to any material fact and Plaintiff is entitled to summary judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 424 (1986) (Summary judgment appropriate where undisputed facts warrant judgment for the moving party as a matter of law). In addressing a motion for summary judgment, the court must view the evidence in the light most favorable to the party against whom summary judgment is sough and must draw all reasonable inferences in its favor. Matusushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the initial -4Document 197

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burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). A. FEDERAL UNFAIR COMPETITION/FALSE DESIGNATION OF ORIGIN AND MISAPROPRIATION. "Any person who, on or in connection with any goods or services...uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion... or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods... shall be liable in a civil action by any person who believes that he is or is likely to be damaged by such act. 15 U.S.C. § 1125(a). Section 43(a) of the Lanham Act creates a civil cause of action for celebrities because they possess an economic interest in their identities akin to that of a trademark holder. Rosa Parks v. LaFace Records, 329 F.3d 437, 445 (6th Cir. 2003). Such a celebrity must show that the use of his name is likely to cause confusion among consumers as to the connection between the celebrity and the defendant's goods or services. Id. The test for trademark infringement, unfair competition or violation of section 43(a) of the Trademark Laws, 15 U.S.C. § 1125(a), is whether defendant's use of the name is likely to cause confusion with plaintiff's prior use of the name. New West Corp. v. NYM Co. of California, Inc., 595 F.2d 1194, 1198 (9th Cir. 1979). In determining the issue of likelihood of confusion, the factors that are relevant include: 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. See Golden Door, Inc. v. Odisho, 646 F.2d 347, 349-350 (9th Cir. 1980), 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. Case 2:04-cv-00299-DGC -5Document 197 Filed 10/28/2005 Page 5 of 19

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1. HGI 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). HGI did not have the right to use Plaintiff's name and likeness, or to license it to a third party. SOF ¶ 4-5. Plaintiff is the only person who possess the right to use his name and likeness on products, and Plaintiff is the only person who may give consent to a third party to use his name and likeness. SOF ¶ 4-5. However, HGI licensed to GTFM, the right to use the names, likenesses, and player numbers of Harlem Globetrotter players on products and clothing produced by GTFM. SOF ¶ 15-16. GTFM then produced a line of Harlem Globetrotters clothing. SOF ¶ 24. Some of that clothing and tags bore Plaintiff's name and likeness and/or number. SOF ¶ 25, 27. HGI clearly profited from the sale of the clothing and tags bearing Plaintiff's name and likeness and/or number through royalty fees that were paid to HGI by GTFM. SOF ¶ 17-19. Also, this clothing line increased the value of HGI. SOF ¶ 86. The majority of HGI stock was purchased by a company headed by Roy Disney for approximately $76 million dollars. SOF ¶ 88. Prior to this clothing line, Mannie Jackson purchased the Harlem

Globetrotters out of bankruptcy in 1993. SOF ¶ 87. Plaintiff is a celebrity and has used his name to promote his ministries and charities and his own basketball team. 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 HGI use Plaintiff's name on clothing, but it was used in connection with the one team for which Plaintiff is most recognized, the Harlem Globetrotters. However, Plaintiff is not currently employed with the Harlem Globetrotters, and has not been for decades. SOF ¶ 1. To prevail on his claim for summary judgment, Plaintiff must show that HGI's 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. Therefore, the Court must evaluate the relevant factors to determine if confusion is likely. First, the "mark" used by HGI and Plaintiff's "mark" are identical. HGI used Plaintiff's name and retired player number. Most of the clothing or tags either had Plaintiff's entire name emblazoned -6Document 197

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across it, would have just his first or last name on it, or just his retired number. Second, HGI's product, the sports apparel, is identical to Plaintiff's. HGI 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, HGI is marketing and selling the only product for which Plaintiff has any notoriety. Third, the intent of HGI in selecting Plaintiff's name to use in the clothing line is clear: commercial profit. SOF ¶ 17-19. HGI used Plaintiff's name solely for its own profit. Fourth, the "strength" of Plaintiff's `mark,' which refers to 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. 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. After evaluating the relevant factors regarding likely confusion, it is clear that HGI's use of Plaintiff's name is likely to cause confusion among the public as to the connection between the Plaintiff and the clothing. Because there is no issue as to any material fact regarding HGI's use of Plaintiff's `mark' and the likely confusion that will result among the public as to the connection between Plaintiff and the clothing line, Plaintiff if entitled to summary judgment against HGI as a matter of law. 2. 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).

For the same reasons stated above, Plaintiff is also entitled to summary judgment against GTFM for violation of the Lanham Act. Plaintiff, as a celebrity, possesses an economic interest in his identity akin to that of a trademark holder. Rosa Parks v. LaFace Records, 329 F.3d 437, 445 (6th Cir. 2003). Because Plaintiff possesses that economic interest in his identity, his name, likeness and player number are protected under the Lanham Act like a trademark. GTFM, without authorization or a license agreement from Plaintiff, produced a line of clothing, in connection with the Harlem Globetrotters, that

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bore Plaintiff's name and likeness and/or player number. SOF ¶ 5. GTFM clearly profited from the sale of the clothing. Furthermore, when entering into the contract with HGI, GTFM did not do due diligence with regard to verifying whether HGI had the authority to license Plaintiff's name and likeness to GTFM. SOF ¶ 50-58. Specifically, GTFM only reviewed one `sample' player contract, and did not review Plaintiff's contract, nor any other player's contracts. SOF ¶ 49. In fact, GTFM stated that they

specifically included an indemnity clause in their contract with HGI because they did not feel like reviewing Plaintiff's contract to see if HGI had the authority to license the players' names and likenesses. SOF ¶ 45-48. For the same reasons stated above as to summary judgment against HGI, Plaintiff has shown the Court that it is clear that GTFM's use of Plaintiff's name is likely to cause confusion among the public as to the connection between the Plaintiff and GTFM's clothing. Because there is no issue as to any material fact regarding GTFM's use of Plaintiff's `mark' and the likely confusion that will result among the public as to the connection between Plaintiff and the clothing line, Plaintiff if entitled to summary judgment against GTFM as a matter of law. B. COMMON LAW INVASION OF THE RIGHT OF PUBLICITY. The common law right of privacy provides protection against four distinct categories of invasion: 1) intrusion upon a plaintiff's seclusion or solitude, or into his private affairs; 2) public disclosure of embarrassing private facts about plaintiff; 3) publicity which places the plaintiff in a false light in the public eye; and 4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. Pooley v. National Hole-In-One Association, 89 F. Supp. 2d 1108, 1111 (D. Ariz. 2000) (emphasis added). The fourth category is commonly referred to as appropriation or the right of publicity. Id. To prevail on a cause of action for invasion of the right of publicity, Plaintiff must establish: 1) Defendant's use of Plaintiff's identity; 2) the appropriation of Plaintiff's name or likeness to Defendant's advantage, commercially or otherwise; 3) lack of consent; and 4) resulting injury. Id. The -8Document 197

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elements of the right of publicity include only the elements of validity and infringement, not the element of fault. Id. at 1115. An intent to infringe another's right of publicity is not an element of liability, thus, the plaintiff is not required to prove that the defendant intended to identify the plaintiff. Id. Similarly, a mistake regarding Plaintiff's consent is not a defense. Id. 1. HGI Is Liable To Plaintiff For Common Law Invasion Of The Right Of Publicity. As stated, Plaintiff, as a celebrity, possesses an economic interest in his identity akin to that of a trademark holder. HGI used Plaintiff's identity by licensing it to GTFM to produce sports apparel featuring Defendant's name and likeness. SOF ¶ 15, 16. It is clear that in the contract between HGI and GTFM, that HGI attempted to specifically license to GTFM the right to use the names and likenesses of any and all players who have played for the Harlem Globetrotters, or who thereafter play for the Globetrotters during the term of the agreement, other than Wilt Chamberlain and Magic Johnson. SOF ¶ 15, 16. Second, HGI clearly profited from the licensing of Plaintiff's name and likeness and the sale

the clothing bearing Plaintiff's name. SOF ¶ 17-19, 28-32. Specifically, HGI was paid a total of $1,723,000 in royalties from GTFM through September 19, 2003. SOF ¶ 17-19. The FUBU

Globetrotters jerseys and warm up suits alone sold over $60 million in total retail sales in the first two years. SOF ¶ 28-32. Third, Plaintiff did not give his consent for HGI to use his name and likeness in the manner that it was used in the licensing agreement with GTFM and the resulting apparel. SOF ¶ 5. HGI stated that they had authority to use Plaintiff's name and likeness pursuant to a paragraph in Plaintiff's 1975 Contract which ends with the phrase that the Harlem Globetrotters only have the right to use Plaintiff's 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. SOF ¶ 13. However, the Globetrotter's have never before used players' name and likenesses on clothing, and especially have never entered into a licensing agreement with a -9Document 197

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clothing company to produce an entire line of clothing. SOF ¶ 75. Because Plaintiff's name and likeness is being used by HGI in a manner that it was not used prior to the termination of Plaintiff's contract, HGI does not have the authority to use Plaintiff's name and likeness under Plaintiff's 1975 player contract. Additionally, no one from HGI or GTFM contacted Plaintiff to get his approval or consent for the use of his name and likeness on the clothing line. SOF ¶ 74. Therefore, HGI did not have Plaintiff's consent to use his name and likeness. Lastly, Plaintiff was injured by HGI's use of his name and likeness on the GTFM clothing. Plaintiff was not compensated for the use of his name and likeness although, had he consented to the use of his name by entering into his own contract with GTFM, Plaintiff would have been entitled to be compensated. HGI kept all profits that Plaintiff would have been entitled to. SOF ¶ 17-19. Plaintiff did not necessarily want his name associated with GTFM, or FUBU clothing. Plaintiff is still involved in the sports community through his ministries and charities, and produces his own products containing his name which, through the products produced by GTFM, HGI directly competed with. Plaintiff has established all of the elements required to prevail on summary judgment for a claim of violation of his right to publicity. Because there is no issue as to any material fact regarding HGI's invasion of the Plaintiff's right of publicity, Plaintiff is entitled to summary judgment against HGI as a matter of law. 2. GTFM Is Liable To Plaintiff For Common Law Invasion Of The Right Of Publicity.

For many of the same reasons that Plaintiff is entitled to summary judgment against HGI, Plaintiff is also entitled to summary judgment against GTFM. First, GTFM used Plaintiff's identity by emblazoning Plaintiff's name and likeness across clothing that was manufactured and sold by the company. SOF ¶ 15-16. It is undisputed that GTFM manufactured and sold clothing which

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prominently displayed Plaintiff's name and/or number. SOF ¶ 15-16. GTFM clearly profited from the sale of clothing bearing Plaintiff's name and/or number. Net sales on men's and boy's clothing line alone for the first two years was $22.6 million. SOF ¶ 28-32. GTFM did not gain the right to use Plaintiff's name and likeness by entering into the agreement with HGI. GTFM did not contact Plaintiff directly to get his consent to use his name and likeness on the clothing. SOF ¶ 38. Furthermore, as discussed supra, GTFM did not use due diligence when it entered into the contract with HGI. SOF ¶ 50-58. Although GTFM had never before entered into a contract with HGI, GTFM 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 GTFM ask for further proof of Mr. Jackson's assertions. SOF ¶ 45-46. Fourth, Plaintiff has been injured by GTFM's use of his name and likeness in the same ways he was injured by HGI's use of his name and likeness. Plaintiff was not compensated for the use of his name and likeness although, had he consented to the use of his name by entering into his own contract with GTFM, Plaintiff would have been entitled to be compensated. GTFM kept all profits that Plaintiff would have been entitled to. SOF ¶ 28-32. Additionally, by entering into the licensing agreement, GTFM effectively took away Plaintiff's right to choose 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 GTFM directly competed with. C. UNJUST ENRICHMENT.

Quantum Meruit is the measure of damages imposed when a party prevails on the equitable claim of unjust enrichment. Western Corrections Group, Inc. v. Tierney, 208 Ariz. 583, 590, 96 P.3d 1070, 1077 (2004). To recover such damages, the party must prove the following elements of unjust enrichment: 1) the other party was unjustly enriched at the expense of claimant, 2) the claimant -11Document 197 Filed 10/28/2005

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provided a benefit to the other party, and 3) the claimant conferred this benefit under circumstances that would render inequitable the other party's retention of the benefit without payment. Id. 1. HGI and GTFM Have Been Unjustly Enriched And Has Benefited At The Expense Of Plaintiff, And Therefore, Plaintiff Is Entitled, In Quantum Meruit, To The Amount By Which HGI Has Been Unjustly Enriched. To prevail on a claim for summary judgment against HGI and GTFM, Plaintiff must show that there is no issue as to any material fact regarding HGI's and GTFM's unjust enrichment at the expense of Plaintiff. HGI and GTFM had no right to use, or license for use, Plaintiff's name and likeness as HGI and GTFM did by entering into the contract. SOF ¶ 4-5, 57. 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. SOF ¶ 4-5. However, HGI and GTFM 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. HGI and GTFM 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 HGI and GTFM. It is also through Plaintiff's status in the community that HGI and GTFM were able to make a profit on the clothing that displayed Plaintiff's name and likeness. Therefore, Plaintiff provided a benefit to HGI and GTFM. Plaintiff conferred this benefit to HGI and GTFM under circumstances that would render inequitable HGI's and GTFM's retention of the benefit without payment because it is Plaintiff, not HGI and GTFM, that is entitled to the profits from the sale of the clothing bearing his name and likeness. HGI and GTFM had not authority to license Plaintiff's name and likeness to a third party, and exploited Plaintiff when it did so solely for its own commercial benefit. Additionally, HGI and GTFM has -12Document 197 Filed 10/28/2005

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admitted that it will continue to use Plaintiff's name, image, jersey number, likeness, goodwill and notoriety as a Harlem Globetrotter for its own commercial benefit. SOF ¶ 39-41. GTFM 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. SOF ¶ 45-46. Therefore, it would be inequitable for HGI and GTFM to retain the benefit that Plaintiff conferred on it. For that reason, summary judgment against HGI and GTFM and in favor of Plaintiff is required. D. FALSE LIGHT-INVASION OF PRIVACY. One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for the invasion of his privacy if: 1) the false light in which the other was placed would be highly offensive to a reasonable person, and 2) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 338,

783 P.2d 781, 784 (1989). In other words, in order to state a claim for false light, Plaintiff must prove that the Defendant knowingly or recklessly published false information or innuendo that a reasonable person would find highly offensive. Id. at 340, 783 P.2d at 786. The plaintiff in a false light case must prove that the defendant published with knowledge of the falsity or reckless disregard for the truth. Id. However, the element of "extreme and outrageous" conduct is not an element of the claim of false light invasion of privacy. Id. Therefore, a court could find that Defendant's publication of false information or innuendo satisfies the false light elements without finding that the conduct was extreme and outrageous. Id. Furthermore, a false light cause of action arises either when something untrue has been published about the individual or when the

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publication of true information creates a false implication about the individual. Id. at 341, 783 P.2d at 787 (emphasis added). 1. HGI Is Liable To Plaintiff For False Light Invasion Of Privacy. Plaintiff must show that HGI knowingly or recklessly published false information or innuendo about him that a reasonable person would find highly offensive. Plaintiff can meet that burden by showing that HGI's publication of true information created a false implication about him that a reasonable person would find offensive. See Godbehere, 162 Ariz. 335, 341, 783 P.2d 781, 787. First, HGI's use of Plaintiff's name created a false implication about Plaintiff, specifically, that he endorsed the clothing line on which his name and likeness were featured. Second, Plaintiff is an ordained minister and runs the Meadowlark Lemon Ministry. SOF ¶ 85. HGI's conduct would be

offensive to the reasonable person because HGI literally `stole' Plaintiff's identity by licensing his name and likeness to a third party when HGI did not have the authority to do so. By creating a false implication about Plaintiff that a reasonable person would find offensive, HGI has become liable to Plaintiff for false light invasion of privacy. Therefore, Plaintiff is entitled to summary judgment against HGI as a matter of law. 2. GTFM Is Liable To Plaintiff For False Light Invasion Of Privacy. Again, by GTFM using Plaintiff's name on its clothing line for commercial profit, GTFM 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, GTFM 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. SOF ¶ 85. Lastly, GTFM's conduct would be offensive -14Document 197 Filed 10/28/2005

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to the reasonable person because GTFM literally `stole' Plaintiff's identity by using his name and likeness when GTFM did not have the authority to do so. By creating a false implication about Plaintiff that a reasonable person would find offensive, GTFM has also become liable to Plaintiff for false light invasion of privacy. Plaintiff is entitled to summary judgment against GTFM as a matter of law. E. DEFAMATION. A defamation action compensates damage to reputation or good name caused by the publication of false information. Godbehere, 162 Ariz. at 341, 783 P.2d at 787. To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation. Id. 1. HGI Is Liable To Plaintiff For Defamation. Mannie Jackson is the CEO and owner of HGI. SOF ¶ 68. In press interviews for the book "Spinning the Globe: The Rise, Fall, and Return to Greatness of the Harlem Globetrotters," which was authored by Ben Green, Mannie Jackson made defamatory statements about Plaintiff. SOF ¶ 78. This book is sold on the Harlem Globetrotters website. SOF ¶ 79. Mannie Jackson has received a monetary benefit from this book and the defamatory statements made against Plaintiff. SOF ¶ 80. Additionally, in a statement that was published in the Arizona Republic on January 17, 2004, Mannie Jackson made a defamatory statement about Plaintiff. SOF ¶ 81. Specifically, while talking about Meadowlark forming his own team instead of re-joining the Harlem Globetrotter's, Mannie Jackson stated in the Arizona Republic Article that Plaintiff "wanted to be the show. We have a strong brand policy instead of a star system, and he wanted more money than I could afford." SOF ¶ 81. However, these statements were false, as Plaintiff did not decide to start his own team and not rejoin the Globetrotter's because he "wanted to be the show" or "wanted to be the star." -15Document 197 Filed 10/28/2005 Arizona is a

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community property state. SOF ¶ 89. Mannie Jackson's statements and defamatory conduct were made on behalf of the community and benefited the community. SOF ¶ 90. Plaintiff has built a reputation on being a minister and dedicating his life to his ministries and charities. SOF ¶ 85. Plaintiff's good reputation in the community has developed through that work and his ability to reach out to the community through his ministry. Plaintiff does not have a

reputation for selfishness, as Mannie Jackson stated in the article, but instead has a reputation for giving and selflessness. Therefore, Mr. Jackson's false statements have impeached Plaintiff's

integrity, virtue, and reputation. Plaintiff's reputation and good name have been damaged by Mr. Jackson's publication of false information about Plaintiff and therefore, Plaintiff is entitled to compensation as a matter of law. See Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). F. MOTION FOR SUMMARY JUDGMENT ON COUNTERCLAIM. HGI's counterclaim involves an allegation that Plaintiff is liable to HGI for trademark infringement under the Lanham Act, for Plaintiff's purported adoption and use of a logo similar to HGI's logo and trademark. The test for trademark infringement, unfair competition or violation of section 43(a) of the Trademark Laws, 15 U.S.C. § 1125(a), is whether counterdefendant's use of his `mark' is likely to cause confusion with plaintiff's `mark'. See New West Corp. v. NYM Co. of California, Inc., 595 F.2d 1194, 1198 (9th Cir. 1979). Therefore, for Plaintiff/Counterdefendant to prevail on a motion for summary judgment on the counterclaim, Plaintiff must show that there is no way that Plaintiff/Counterdefendant's logo is likely to be confused with Defendant/Counterplaintiff HGI's logo. HGI's logo is the picture of a person's hand, from the wrist up, spinning a basketball on the index finger. SOF ¶ 82. The basketball is red, white and blue horizontal stripes with Harlem -16Document 197 Filed 10/28/2005

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Globetrotters in black block lettering printed across it. SOF ¶ 82. HGI does not have a copyright on just a plain red, white and blue basketball. SOF ¶ 83. Also, HGI does not have a copyright on all pictures of a person spinning a ball on their index finger. However, Plaintiff's logo is a caricature of himself spinning a red, white and blue ball on his fingertip. SOF ¶ 84. The colors on the basketball run vertical, and the basketball does not have any name on it. SOF ¶ 82. Therefore, Plaintiff's logo is NOT likely to be confused with HGI's logo. No reasonable person would believe that the two logos were the same logo. Since there is no issue as to a material fact, Plaintiff is entitled to summary judgment on the counterclaim, and the counterclaim should be dismissed. III. CONCLUSION WHEREFORE, for all the foregoing reasons, Plaintiff respectfully requests the Court to enter summary judgment in favor of Plaintiff and against HGI and GTFM for violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), invasion of Plaintiff's right of publicity, unjust enrichment, false light (invasion of privacy), and defamation. Furthermore, summary judgment should be entered in favor of Counterplaintiff and against Counterdefendant, and the counterclaim should be summarily dismissed. DATED this 28th day of October 2005. ROSENQUIST & ASSOCIATES

By:

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

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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 October 28 , 2005, a true and correct copy of the foregoing STATEMENT OF FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was sent by postageprepaid 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

-18Document 197 Filed 10/28/2005

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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 28 day of October 2005, at Phoenix, Arizona.

/s/Florence M. Bruemmer Florence M. Bruemmer

-19Document 197 Filed 10/28/2005

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