A quick summary would be that a man named Roy Fox trademarked the term ‘Harbaugh Bowl’, hoping that one day Jim and John Harbaugh would meet in the Super Bowl, as is happening this year. Then apparently the following exchange happened:
Fox: Yay, I will make tons of money off this trademark! NFL: Drop the trademark or we’ll sue. Fox: Eep! Ok, trademark dropped. Fox: Um, since I played nice, can I have season tickets to the Colts and an autograph from Roger Goddell? NFL: Go away.
Anyway, this is the classic case of an organization with deep pockets threatening the little guy into giving something up for nothing, out of fear of the lawsuit outcome.
I’m curious though; what if Fox had instead said “See you in court guys”. Assuming he goes pro se and therefore avoids lawyer fees, since he hasn’t sold anything there’s not a lot of damages to be awarded. I’m aware that he could get stuck with court costs but, to my limited understanding, one side has to be egregiously in the wrong for that to happen, which doesn’t seem to be the case here.
I know that someone representing themselves is representing a fool (and I would personally never try it), but what’s really the worst that could happen to Fox, aside from missing work to show up at court? Are there any particularly interesting cases where the little guy went up against ‘big money’ (and either won or lost in an entertaining fashion)?
Little guy? Or Annoying Guy? (I know someone who does this constantly).
I have an ex-friend who somehow has the time and the money* to file hopeless lawsuit after hopeless lawsuit.
If there’s any chance a sports team will move, he trademarks the new name (ie “The Chicago Packers”), or he produces something like a cartoon where one character has a football team in Chicago named the Packers. He then spends months trying to get the Packers to settle out of court for a huge amount.
Amazingly, the team never sends him a huge check.**
Every single time, a judge says “Packers are well-established with their name no matter where they move, this is frivolous, get outta my courthouse.”
Now, this “little guy” sounds a bit more ethical than mine, but it all starts with this belief in a bundle of cash for not much actual work.
*No money… I just looked up some recent court cases, and some of them are his lawyers from previous cases suing for payment.
** This seems to mystify him-- he honestly thought that the Recently-Indianapolis Colts would just send him 2 million dollars. So then he tried the Cardinals, and the Rams…
Take note of Digs’ point - sued by his own lawyers.
I would suggest a lot of interesting cases are essntially pro bono cases where an organization takes on a “little guy’s” case for the principle involved, and pays for the lawyers.
I suppose there’s a whole thread on its own about what happens whne you try to be your own lawyer. From previous threads - judges are extremely tolerant, but at a certain point if you can’t do the paperwork and can’t argue against the pros - cite precedents, say the right words, make the correct points legally, etc. - then you will lose. It’s no more advisable to try to do a professional (and likely top-notch) lawyer’s job than to do a professional diesel mechanic’s job. There are just louder noises and more smoke if you mess up the latter.
As for the merit of the guy’s case - I suspect it’s one thing to trademark a name, another to make money. First of all, the superbowl will happen anyway. However, I suspect if the guy tried to piggyback on the superbowl in any way with his “trademark”, he would be buried in fairly legitimate litigation.* Meanwhile, nobody would license the use for fear of ending up part of the lawsuit. By the time the case was settled, assuming he actually won, the Harbaughs would be retired.
Remember, for the NFL, a stall is as good as a win. Nobody’s going to license a name from a decade ago.
There was a news story a while ago about the NFL chasing anyone who used “super” or “bowl”, arguing they owned the trademark to"Superbowl". Most restaurants would say something like "Order a pizza for ‘the Big Game’ " to avoid having to argue confusion, popular use, etc. In a way this makes sense - if you use the word “Superbowl” in you ad, how does the public know it’s not a sponsorship deal? Using ‘Harbaugh Bowl’ the NFL might have a legit case people would confuse it with their trademarked “Superbowl” especially when you mean the Superbowl. In a world where Martin Luther King’s and Winston Churchill’s descendants chase those reproducing their famous speeches for copyright violation, is this surprising?
What would have happened if he called the NFL’s bluff depends on the merits of the individual case. I have to assume he consulted with an attorney specializing in trademark disputes and was told he would get crushed.
There is also the “Offer of Judgment” under Fed. R. Civ. P. 68, which allows one party to recover costs incurred after a settlement offer, if the other party refuses the offer and does not obtain a verdict more favorable than the offer. There are similar analogues in most states.
digs’ guy is an amusing but not really equivalent case. In that guy’s case, he’s a little (and not very smart) guy suing the NFL. I’m really more curious about the case in the OP, where the NFL sues the little guy.
As far as md2000’s points - yes, I am well aware that the chances for success are extremely low, especially if one goes pro se and makes an idiot of themselves in the courtroom. I would definitely not advise anyone to try.
The point about the NFL being able to draw out the proceedings for a decade makes sense. It would seem like there should be some way around that to keep large corporations from smothering smaller guys like that. I suppose they would run afoul of anti-trust laws? I doubt the NFL could sue ‘Bob’ over “Bob’s neighborhood amateur football bowl”, but what keeps the NFL from doing so even though they have a terrible case? (Aside from them actually noticing poor Bob)
Look, I’m not saying this Fox guy had a chance. But, if he really wanted those Colts tickets, it seems like saying “see you in court” doesn’t have a whole lot of downside for him. I’m sure there’s something I’m missing, which is the reason for the OP.
Edit: Missed RNATB’s post. Doesn’t seem like the NFL made any settlement offer here. And even if an attorney told him he would get crushed, what would be the penalty for trying, outside of some missed work days?
He’s missing the entire point of trademark law - it exists to protect consumers against confusion regarding brands (the fact it’s enforced by corporations is a convenient alignment of concerns). He’s trying to do the opposite - profit based on consumer confusion. He’ll find no friend in the law.
Antitrust laws prevent the NFL from smothering other competing enterprises - sports leagues, in other words. They don’t prevent the NFL from smothering other non-competing enterprises, like a dude who registers a trademark.
They can’t really draw out proceedings for a long time, either, unless the other party is down with it. They can appeal an unfavorable decision, of course, but only the first one is mandatory. After that, the reviewing court will generally get to decide whether to hear the next appeal.
According to my wife (an attorney) the saying goes that “the person who represents himself has an idiot for a client.”
And, according to her, judges are absurdly tolerant of pro-se litigants, just because they don’t want to be seen/in the news as the jerk who threw out the little guy trying to defend himself in court. She had a workers’ comp case against a pro-se some years ago, and she said that had it been another lawyer on the other side, she’d have got a summary judgement and that would have been it, but this cretin kept bringing irrelevant crap up and not following procedure, missing deadlines, etc… but the judges kept letting him get away with it because he was loud and a PITA, and they didn’t want to hear from him if they killed his case due to procedural issues; they wanted him to lose fair and square so hopefully he’d go away.
Yes, so confirms what I read in other threads… IIRC the saying goes “The person who defends himelf has a fool for a lawyer and a fool for a client”.
But at a certain point, unless the pro se really knows his stuff or has professional help, they will likely screw up. Messing up the technicalities of legal work might be overlooked for a while - but how long you have to file an appeal, what it needs to address (legal points and errors, not re-arguing the facts of the case) etc. - these sorts of details eventually will cathc up with a bad (non)lawyer. If too much laxity is allowed, for example, in filing an appeal, the next appeal may be by the other side - “why should we suffer through a whole appeal process which was improperly filed? Why should we be penalized for the other side’s failings?”
Even in the trial itself - I imagine trademark law is a matter of trading precendents and explaining how that interpretation will apply in this case. The NFL cites 20 cases that back up their position, and explain why that interpretation of law applies here, Joe Schmoe has no comeback and can’t even appreciate the subtleties of the cites - even the most lax judge can’t overlook that sort of stuff. If you want to win, you have to have a case.
The earliest attribution is Henry Kett in The Flowers of Wit (a collection of existing phrases) as “I hesitate not to pronounce, that every man who is his own lawyer, has a fool for a client.” It’s quoted fairly frequently in cases where pro se litigants have claimed a constitutional right to defend themselves. Justice Stevens phrases it as:
This is really the issue in this case. Fox is an idiot whose claim was frivolous in the first place. He has no legitimate right to use the Harbaughs’ name, and so far as I know, there’s no evidence that he was even making any trademark use of “Harbowl” or “Harbaugh Bowl.”
See, this is why every time a trademark issue comes up, I encourage people not to use the word “trademark” as a verb, because it leads to misconceptions about how trademarks work. Trademark law is not based on filing a paper with the government. It’s based on earning your rights in a trademark by using it legitimately.
Guys, I get that going pro se is a dumb thing to do.
I get that pro se defendants almost never win.
I even paraphrased the “a lawyer who represents himself has a fool for a client.” in the OP.
I know Fox in a moron, who doesn’t have a leg to stand on, and would certainly lose his case if it went to trial.
None of that was the point of the OP. The point was (and I guess I wasn’t clear, so I apologize) is: Assuming some pro se defendant goes to court, there isn’t a pre-trial settlement offer, what is the worst he has to lose, other than a few days work? (Obviously he is losing the case. That is not the question at hand).
He could get stuck paying fees and costs for the other party. He could get bounced for contempt for acting stupid in a court room. If he’s sufficiently troublesome, the court could hit him with an injunction requiring him to get the court’s permission before bringing any claims of any kind against anyone.
This is the part I’m interested in. AFAIK, in order to be stuck with fees and costs for the other party, you have to have an egregriously bad case. As in, laughably bad. What’s the actual standard for this?
And how bad are these costs anyway? If it’s only a few hundred dollars, it would seems like you’d have more little guys going to court, if only to make the big bully litigants shell out for an expensive lawyer. But again, I’m obviously missing something here.
If he gets sued in federal court and if he never tried to use either trademark, he probably wouldn’t lose much money. But, Federal Rule of Civil Procedure 54(d)(1) requires the judge to award taxable costs to the prevailing party. These costs include the filing fees to sue him and expenses from court reporting and copying. As just a guess, he could lose about $5,000 here.
If he used the mark and profited from the use, he could end up losing the profit and would face penalties of up to three times his profits depending on the circumstances of his use.
Also, the linked story doesn’t mention this, but he abandoned both marks on October 24, 2012.