The hearing wasn’t supposed to happen until April 18. It happened yesterday. So did the ruling.
The new USFL can proceed with names and logos that potentially infringe on rights held by the original USFL, which debuted in 1983.
As explained by Ben Fischer of Sports Business Journal, Judge John Walter concluded that the original USFL was not entitled to what’s known as a preliminary injunction in the trademark infringement case brought against Fox, the owner of the new USFL. A preliminary injunction would have prevented Fox from using the USFL names and logos until the underlying case is resolved.
It’s not easy to get a preliminary injunction. It requires more than a showing that the plaintiff will likely win the case. The plaintiff has to also show, among other things, that it will suffer “irreparable harm” if the preliminary injunction isn’t granted. This means, in most cases, that the injury suffered by the ongoing violation can’t later by rectified with an award of monetary damages as compensation.
In this case, what’s the harm to the original USFL? It hasn’t tried to play games in decades. It’s not in the process of reconstituting. The judge found that no “irreparable harm” would come from allowing Fox to use the names and logos while the case proceeds.
A request for a preliminary injunction also requires the judge to balance the hardships to the plaintiff if an injunction isn’t granted and to the defendant is an injunction is issued. Judge Walter pointed out that Fox has made a major investment in the new USFL. It also didn’t help that the USFL waited to sue when it was obvious that Fox planned to use the names of the league and eight of its former teams.
The news wasn’t all bad for the old USFL, however. The judge noted that the owners of the original USFL names and logos would likely prevail on their trademark infringement claim. Whether that means Fox will have to abandon the names or pay the original USFL for the privilege of using them remains to be seen.
“We are very pleased at the court’s ruling on the merits that Fox ‘deliberately decided to launch their new league using the same names and teams as the old league in an apparent attempt to capitalize on the nostalgia for the old league,’” Nicholas T. Matich, a lawyer representing the plaintiff in the case, told Fischer. “Although the court is letting Fox move ahead with its league for now, Fox is doing so on a foundation it didn’t build. The court’s ruling shows that the rights of the people that built the original league will ultimately be vindicated.”
Putting it another way, the final judgment in this case for the original USFL very likely will exceed three dollars.
