INDIANAPOLIS -- The NFL yesterday rolled out its formidable legal arsenal -- including a $75,000 consultant's study -- to try to block Baltimore's Canadian Football League team from calling itself the Colts.
In a daylong hearing in U.S. District Court, the dueling leagues each laid claim to Baltimore's storied football heritage. Both evoked the memories of great Colts alumni -- especially Hall of Fame quarterback Johnny Unitas -- but disagreed over who should profit from their legend.
The NFL says the CFL's use of the Colts name is an illegal attempt to profit on the popularity and success of the franchise, which was in Baltimore from 1953 to 1984, when owner Robert Irsay moved it to Indianapolis.
"Whether or not people like Mr. Irsay or whether or not there are a few people in Baltimore upset about Mr. Irsay moving the team is not the issue here," said John Paul Reiner, a New York-based attorney representing the NFL.
Irsay did not appear in court.
The league has asked Judge Larry J. McKinney for a court order barring the CFL club from using the Colts name before the rights can be permanently established at trial.
The NFL filed suit here April 29, about two months after the CFL team unveiled the name and filed its own pre-emptive suit in Baltimore. That case is still pending.
The hearing will resume today with the Baltimore team presenting its case, including expected appearances from CFL Colts owner Jim Speros and Baltimore Colts' Band head John Ziemann.
In opening statements yesterday, Speros' attorney, George F. Pappas, said the name is "a historical concept, a cultural institution of the city of Baltimore.
"Can the NFL claim inheritance of football traditions, notwithstanding the notorious abandonment of a city?" said Pappas of Venable, Baetjer and Howard in Baltimore.
He estimated the CFL Colts would lose $1.8 million if they were forced to change their name. The team, which plays its first exhibition game tonight in Shreveport, La., already has printed tickets, filmed ads and promoted its name to fans.
"What was brought to Indiana was the players, the equipment, the management -- the nuts and bolts if you will. The huge body of goodwill and heritage was left behind, abandoned," Pappas said.
But a series of NFL witnesses asserted that their league stands to lose money and possibly suffer damage to its reputation if its Canadian competitor "misappropriates" the name.
"We relocated the history and the franchise to Indianapolis. This was the continuation of a team that became a part of the NFL in 1953," said Michael G. Chernoff, vice president and general counsel of the Indianapolis Colts.
The team's official history includes the three decades in Baltimore, its media guide and fan publications refer to great players from that age and Irsay's suburban Chicago office still displays the original Baltimore Colts charter, he said.
"They are trying to hook their colt to our cart. This is our history, not theirs. . . . This is our name, not theirs," Chernoff said.
The NFL, which was represented by at least three attorneys and an equal number of support staff, introduced about 70 pieces of evidence, including piles of CFL Colts clothing purchased by NFL investigators at Memorial Stadium and Harborplace.
There were also a few Baltimore Colts hats produced since 1991 as part of a special line of NFL vintage merchandise. League officials were unable to estimate how much money is made on Baltimore Colts goods, but the line as a whole generated $12 million in retail sales last year, according to testimony.
A consultant hired by the NFL testified that many consumers would be confused by the CFL merchandise, mistakenly assuming it was licensed or controlled by the NFL.
The consultant, Jacob Jacoby, a New York University professor of consumer behavior, said he polled 726 people in 24 cities, including Baltimore, as part of a study that will cost the NFL about $75,000.
When shown CFL Colts merchandise, about one-third of the respondents failed to answer correctly a few questions, including the team's league. Some assumed a connection with the NFL, Jacoby said.
Pappas sought to discredit the study, criticizing its methodology and Jacoby's credibility.
Gary Gertzog, vice president and general counsel of the NFL's licensing arm, NFL Properties, acknowledged that the league allowed the Baltimore Colts service mark registration at the U.S. Patent Office to lapse in 1992.
He said the league did not renew the mark because it didn't intend to field a team by that name, but wasn't waiving its rights. The league did renew a registration for use of the name on certain merchandise.
Other NFL officials testified that they feared consumer ire if the CFL Colts produce inferior merchandise, stage inferior games or if its players or CFL teams become associated with gambling or drug use.
Those officials, however, said they have not attempted to block the use of the name by the Colts' Band or Colts Corral fan clubs.
"We have not attempted to stop its use because it continues to promote goodwill and our heritage," Chernoff said.