Judge sides with NFL on Colts

June 28, 1994|By Jon Morgan | Jon Morgan,Sun Staff Writer Sun staff writer Alan Goldstein contributed to this article

Indianapolis wins again.

In another loss to the city that a decade ago lured Baltimore's treasured National Football League franchise, a federal judge last night ordered Baltimore's fledgling Canadian Football League team immediately to stop using the name Colts.

In Indianapolis, U.S. District Judge Larry J. McKinney agreed with the NFL that the use of Colts, even by a different league, probably constitutes an illegal misappropriation of a name owned for 40 yearsby the NFL.

"The mark Colts is clearly the property of the plaintiffs as a registered trademark. Clearly, the defendants cannot appropriate that mark to their own use," the judge wrote.

Baltimore team owner Jim Speros vowed to keep fighting for the name, even as the team takes the field for its exhibition home opener tomorrow as probably the only professional American sportsteam without a name.

"Right now, we're a football team and a horse without a name," Mr. Speros said. He said he hoped quick legal action could return the name -- which he said was the choice of fans -- during the season.

In the meantime, he will refer to the team as Baltimore CFLs.

Gary Gertzog, vice president for legal/business affairs at NFL Properties, the league's merchandising arm, said, "We're very pleased with the decision.

"It's a valuable trademark right that has been owned by the NFL for years. We're not trying to prevent the CFL from having a team in Baltimore. We're just trying to protect a valuable trademark," Mr. Gertzog said.

The judge's ruling is not the final word on the case, which has yet to be heard by a jury. But in granting the temporary court order the NFL requested, the judge agreed that the league had a strong enough case, and stood to suffer significant enough damages, to warrant a preliminary injunction.

Such rulings often are enough to force the losing side to quit in trademark cases.

But Mr. Speros said he will appeal the order and pursue his case, trying to get the matter decided by a Maryland judge.

Under the judge's order, the Baltimore team immediately must stop using the name Colts on tickets, team publications and other printed material. It also must recall all schedules, advertising, and merchandise bearing the name. However, the club doesn't have to collect tickets already distributed, nor does must it recall media guides and programs already printed.

The team's uniforms bear no name, only a stylized horse's head, and will not have to be altered.

The judge ordered the NFL to post a $1 million bond to cover losses suffered by Mr. Speros in the event that he ultimately wins the case.

Mr. Speros announced that he was calling his team the Baltimore CFL Colts on March 1. The NFL had warned him by letter in advance that it would take legal action against the use of Colts, but Mr. Speros said he thought the insertion of CFL was sufficient to keep fans from being confused.

Nonetheless, he filed a pre-emptive suit in Baltimore after announcing the name. That case still is pending. The NFL and Indianapolis Colts responded on April 29 with their own suit against the Baltimore team and its league.

In a two-day hearing in Judge McKinney's courtroom last week, both sides presented consultants' studies and boxes of evidence, including stacks of T-shirts and sworn affidavits from legendary Colts players such as Johnny Unitas.

The case quickly became a fight for the rights to Baltimore's storied football heritage, with the NFL Colts saying the team is the continuation of one that started here in 1953 and moved to Indianapolis in 1984.

Specialists in law and marketing agreed that last night's decision was bad, but not fatal, for Baltimore's CFL team.

"The NFL seemed to have the better arguments, so it seemed an uphill fight," said Ned Himmelrich, a trademark attorney not involved in the case.

"A preliminary injunction is not the final word, but it is probably a pretty strong one," said Mr. Himmelrich, who is with Gordon, Feinblatt, Rothman, Hoffberger and Hollander and is chairman of the Maryland Bar Association Intellectual Property Committee. "This is at least the first indication of what a judge who is required to weigh these facts thinks."

Bryan Yolles, executive vice president of W.B. Doner & Co. advertising agency of Baltimore, said: "From a marketing standpoint, the Colts name is a bonanza, and if they can't use it, they will have to build it up all over again."

He said the team, if it is forced to change its name permanently, will have to invest heavily in re-educating the public.

"They are going to have to make a lot of changes. . . . They have spent a lot of time and money to build up brand equity. It means they will have to invest in all new image and name recognition," Mr. Yolles said.

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