Speros saddles up for renewed Colts-NFL battle

August 16, 1994|By Ken Murray | Ken Murray,Sun Staff Writer

Jim Speros backed off his stance of backing down yesterday.

The fight with the NFL is back on.

Staring out at the klieg lights of TV cameras and a room filled with reporters, the owner of Baltimore's Canadian Football League team said he will attempt to take the trademark rights case over the Colts name into federal court in Baltimore, or, failing that, the Supreme Court.

"I'm going to continue this fight because I feel it's the best thing to do at this point in time," Speros said.

"If I have to go the remainder of the season without a name, I will do so. I'm not going to roll over and give the NFL what they'd like."

What he will not do -- for now, anyway -- is abandon the fight, a possibility he raised over the weekend after the 7th U.S. Circuit Court of Appeals in Chicago upheld a preliminary injunction ordered in Indianapolis district court.

Speros reached his decision to press forward after reading the 15-page opinion written by Chief Judge Richard A. Posner of the 7th Circuit. Circuit judges William J. Bauer and Michael S. Kanne also sat in on the three-man panel that rejected Speros' appeal by a 3-0 vote.

The opinion focused on surveys submitted during arguments in Indianapolis attempting to show confusion over the dual names.

"When the judge feels there's confusion in the surveys, then I have a hard time accepting his decision," Speros said. "If he had something black and white that he supported, then I may look at this differently. I disagree with their decision."

Posner's opinion took a less-than-flattering view of surveys in general, but in particular ridiculed the one done by Dr. Michael Rappeport on behalf of Speros.

"The defendants' was prepared by Michael Rappeport and is summarized in a perfunctory affidavit by Dr. Rappeport to which the district judge gave little weight," Posner wrote. "That was a kindness. The heart of Rappeport's study was a survey that consisted of three loaded questions asked in one Baltimore mall. Rappeport has been criticized before for his methodology . . . and we hope that he will take these criticisms to heart in his next courtroom appearance."

Posner said the NFL study, conducted by Jacob Jacoby, was "far more substantial," interviewing several hundred consumers in 24 malls across the country. That survey showed an element of confusion -- rated at 64 percent among self-identified football fans -- between the Baltimore CFL Colts and either the old NFL Baltimore Colts or the Indianapolis Colts.

That was the survey that led U.S. District Judge Larry J. McKinney in Indianapolis to issue a preliminary injunction on June 27.

Attorney George Pappas of Venable, Baetjer and Howard, the firm representing Speros, disputes confusion of that magnitude.

"We continue to believe that fans of professional football are not likely to be confused . . .," Pappas said. "And we are disappointed that Judge Posner recognized the numerous flaws the NFL's study and yet refused to overturn Judge McKinney's decision, which relied virtually exclusively on that survey."

Speros responded by taking his own shot at the NFL survey.

"I don't think the survey Jacoby did, going to 24 malls and having slanted questions, can resolve this issue," he said. "This issue is much larger than that. It should not rely on two surveys. . . . Maybe this should be handled in front of a jury. Maybe that's the only way it can ever be fairly settled."

That, ultimately, is Speros' biggest hope -- a jury trial in U.S. District Court in Baltimore. Yesterday he lamented the fact he couldn't get District Judge William M. Nickerson to hear the case. Speros originally filed for declaratory judgment in Maryland on March 1, when he named his team the CFL Colts.

"As of today, we go on record that Judge Nickerson has not been favorable in trying to have this heard here in Maryland, which has been very frustrating," Speros said. "I look at everything in our organization, and I have a lot of things to be thankful for. That's probably the only thing that hasn't gone my way, having Judge Nickerson really kind of turn his back on our situation here. I feel that's unfortunate. He has his reasons. I feel it's unfortunate."

Speros said he will decide in the next 10 days to two weeks where to aim his next court action -- Maryland or the Supreme Court. If he goes to the Supreme Court on appeal of the Chicago decision, it might take as long as 90 days to get a hearing, he said. It seems more likely he will file a motion asking Nickerson to hear the case here.

Trademark attorney Ned Himmelrich, of the Baltimore firm of Gordon, Feinblatt, said he believes Speros should get his Maryland court date, but not necessarily a jury trial.

"I think there is a good chance of getting the case heard in Maryland because the declaratory judgment was brought there first and it is now time for a full trial to take place," said Himmelrich, chairman of the Maryland Bar Association intellectual property committee.

"Trademark cases rarely, if ever, go to a jury because juries only analyze questions of fact. It is the survey in a trademark case that is the analysis of fact, not the jury."

Acknowledging the favorable publicity Speros has received, Himmelrich said he still believes the NFL's position will be tough to beat.

"Legally, it's still an uphill battle," Himmelrich said. "But it seems his money is buying him more than a legal position. And there's always the chance of winning."

Speros said he believes he can still win, his reservations of the previous two days notwithstanding.

"I would like to have this settled as quickly as possible because we owe it to the fans of Baltimore to have a name," he said. "At the same time, I don't want to rush into something and roll over when maybe only half the battle is fought. We're going to exhaust all avenues. I want to make sure we did everything we could to regain the name."

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