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 VOLUME I OF TWO VOLUMES OF EXHIBITS EXHIBITS A-M

DECLARATION OF IRA S. SACKS IN SUPPORT OF DEFENDANT GTFM, LLC'S MOTION FOR SUMMARY JUDGMENT IRA S. SACKS declares as follows under penalty of perjury pursuant to 28 U.S.C. § 1746: 1. LLC ("GTFM"). Judgment. I am a partner in the firm of Dreier LLP, attorneys for defendant GTFM, I submit this declaration in support of GTFM'S Motion For Summary

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2.

Other than as expressly set forth herein, the matters set forth herein are based

on my personal knowledge. 3. I have reviewed the documents produced by GTFM in these actions. An

insignificant number of styles containing plaintiffs' likenesses and/or images were manufactured and/or sold. I took the deposition of plaintiffs' expert, Sandra Abalos. Ms. Abalos was unable to identify any styles containing plaintiffs' likenesses and/or images and only identified styles that used the plaintiffs' names and/or alleged jersey numbers, or the names or jersey numbers of other players. 4. Mr. Rivers claims that he has a right to the number 11 on jerseys because that

is the number he wore while he was a Globetrotter. However, plaintiffs have produced a DVD in which Rivers is wearing the Harlem Globetrotters uniform with the number 14, not 11, during a

5.

I am fully familiar with, and have reviewed, the evidence submitted in these

6.

Plaintiffs have not submitted any evidence that (i) their names, alleged

numbers, images or likenesses have achieved secondary meaning or (ii) act as a source identifier. 7. Plaintiffs have not submitted any consumer surveys or consumer testimony

as to the plaintiffs' public recognition and have not submitted any evidence as to plaintiffs' reputation and/or notoriety.

22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 182 2 Filed 10/24/2005 Page 2 of 6 8. Plaintiffs have failed to establish that the Alleged Trademarks are protectible

under the Lanham Act. Plaintiffs have not submitted any evidence as to whether any consumers bought (or likely bought) any FUBU/HGI Apparel because any players' names, numbers, images and/or likenesses were on them.

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9.

Additionally, plaintiffs' failed to investigate whether purchasers of the

FUBU/HGI Apparel were likely to be confused as to the source or sponsorship of the merchandise. 10. Plaintiffs have not adduced any evidence to suggest that GTFM willfully infringed their rights. 11. Plaintiffs' Expert Report is revealing in what it does not do: It does not even attempt to establish that plaintiffs have consumer recognition in their names, numbers or likenesses; it does not even attempt to establish that consumers were likely confused in purchasing the Alleged Infringing Goods; it does not even attempt to establish that a single consumer bought (or likely bought) a single piece of Alleged Infringing Goods because of plaintiffs' names, numbers or likenesses; it does not even attempt to estimate the income plaintiffs lost as a result of GTFM's conduct; it does not even attempt to estimate what a

14 15 16 17 18 19 20 21 Amended Complaint, dated October 1, 2004, adding GTFM, LLC as a party. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 182 3 Filed 10/24/2005 Page 3 of 6 14. Attached hereto as Exhibit C is a true and correct copy of the Florida Plaintiffs' Amended Complaint, dated October 19, 2004, adding GTFM, LLC as a party. 15. Attached hereto as Exhibit D is a true and correct copy of Judge Gregory Presnell's Order transferring the Florida Action to the District of Arizona, dated May 12, 2004. reasonable royalty would be; it does not analyze plaintiffs' alleged damages by individual plaintiff, but only in the aggregate. 12. Attached hereto as Exhibit A is a true and correct copy of the License Agreement entered into on June 1, 2002 between Harlem Globetrotters International, Inc. and GTFM, LLC. 13. Attached hereto as Exhibit B is a true and correct copy of Lemon's Second

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16. Attached hereto as Exhibit E is a true and correct copy of Judge David Campbell's Order consolidating the Arizona Action and the Florida Action for all purposes, dated June 18, 2004. 17. Attached hereto as Exhibit F are true and correct copies of pages from the deposition transcript of Bruce Weisfeld, dated August 3, 2005. 18. Attached hereto as Exhibit G are true and correct copies of pages from the deposition transcript of Meadowlark Lemon, dated April 12, 2005. 19. Attached hereto as Exhibit H are true and correct copies of pages from the deposition transcript of Fred Neal, dated April 14, 2005. 20. Attached hereto as Exhibit I are true and correct copies of pages from the deposition transcript of Marques Haynes, dated April 13, 2005. 21. Attached hereto as Exhibit J are true and correct copies of pages from the

14 15 16 17 18 19 20 21 deposition transcript of James Sanders, dated August 23, 2005. 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 182 4 Filed 10/24/2005 Page 4 of 6 25. Attached hereto as Exhibit N are true and correct copies of pages from the deposition transcript of Sandra Abalos, dated September 14, 2005. 26. Attached hereto as Exhibit O is a true and correct copy of a list of Harlem Globetrotters who have used the jersey numbers at issue since the plaintiffs wore them. deposition transcript of Robert Hall, dated August 23, 2005. 22. Attached hereto as Exhibit K are true and correct copies of pages from the deposition transcript of Larry Rivers, dated July 19, 2005. 23. Attached hereto as Exhibit L are true and correct copies of pages from the deposition transcript of Dallas Thornton, dated July 19, 2005. 24. Attached hereto as Exhibit M are true and correct copies of pages from the

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27. Attached hereto as Exhibit P are true and correct copies of pages illustrating merchandise and advertisements using various plaintiffs' names and/or likenesses. 28. Attached hereto as Exhibit Q is a true and correct copy of a letter to Mr. Lemon from Uniroyal, Inc., dated November 18, 1969. 29. Attached hereto as Exhibit R are true and correct copies of pages from a book by George Vecsey, entitled "Harlem Globetrotters" that contains pictures courtesy of the Harlem Globetrotters. 30. Attached hereto as Exhibit S are true and correct copies of pages from the 1968 Harlem Globetrotters Program. 31. Attached hereto as Exhibit T are true and correct copies of pages from the 1970 Harlem Globetrotters Program. 32. Attached hereto as Exhibit U are true and correct copies of pages from eBay

14 15 16 17 18 19 20 21 illustrations from the cartoon "The Super Globetrotters." 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 182 5 Filed 10/24/2005 Page 5 of 6 36. Attached hereto as Exhibit Y are true and correct copies of (i) the HGI Check Register from the year ending 2004; (ii) cashed checks from the Harlem Globetrotters to various plaintiffs for the FUBU/HGI Apparel; and (iii) letters to various plaintiffs from HGI regarding the above-referenced payments. selling trading cards with Neal's name, alleged jersey number and likeness. 33. Attached hereto as Exhibit V are true and correct copies of pages from the 1973 Harlem Globetrotters Program. 34. Attached hereto as Exhibit W are true and correct copies of pages from the 1975 Harlem Globetrotters Program. 35. Attached hereto as Exhibit X are true and correct copies of pages containing

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37. Attached hereto as Exhibit Z is a true and correct copy of the Affidavit of Mannie Jackson, dated October 13, 2005. 38. Attached hereto as Exhibit AA are true and correct copies of pages illustrating Bobble Head Dolls, which were sold by HGI and contain the names and likenesses of various plaintiffs. 39. Attached hereto as Exhibit BB are true and correct copies of trading cards bearing the names and likeness of various Harlem Globetrotters. 40. Attached hereto as Exhibit CC is a true and correct copy of a poster with the names and likenesses of Marques Haynes and Showboat Hall. 41. Attached hereto as Exhibit DD is a true and correct copy of the Expert Report of Sandra Abalos, submitted August 19, 2005, excluding exhibits. 42. Attached hereto as Exhibit EE are true and correct copies of hangtags that

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cv-00299-DGC Document 182 6 Filed 10/24/2005 Page 6 of 6 ____/s/ Ira S. Sacks___________ Ira S. Sacks were affixed to some of the FUBU/HGI Apparel. I declare under penalty of perjury that the foregoing is true and correct. Dated: New York, New York October 24, 2005