Jurisdiction ruling likely this week, CFLs are told

September 13, 1994|By Jon Morgan | Jon Morgan,Sun Staff Writer

A Baltimore-based federal judge said yesterday he probably will rule this week on whether he will hear the trademark dispute between the NFL and the Baltimore CFLs over the use of the name Colts.

U.S. District Judge William M. Nickerson presided over a three-hour hearing yesterday during which attorneys for Baltimore's Canadian Football League franchise urged him to hear a suit they filed this summer, rather than letting a rival case filed by the NFL in Indianapolis settle the matter.

Nickerson said he hoped to rule on the various requests before the end of the week. A ruling for the Baltimore CFL team would represent a much-needed victory for the franchise, which has fared poorly in the legal dispute.

However, Nickerson cautioned the CFLs against assuming they would have a home-field advantage in his courtroom, rather than that of Indiana-based Judge Larry J. McKinney.

"Judge McKinney and I have both taken oaths that we would uphold the law impartially," Nickerson said.

George F. Pappas, a lawyer with Venable, Baetjer and Howard who is representing the CFL franchise, told the judge that the CFL team filed its case first, and that the team may not be able to get all the witnesses it wants to Indianapolis, either because of costs or scheduling conflicts.

Most of the witnesses at a preliminary hearing this summer came from Baltimore and New York, he said. "This club, that is starting out, does not have anywhere near the resources of the NFL," Pappas said.

Besides, Baltimore is the only city in which both teams have played.

But attorneys for the NFL countered that the Indianapolis Colts were the injured party in the case, and asserted that the Baltimore district had no legal jurisdiction over the matter because the Colts, who moved in 1984, do not transact business here.

Furthermore, McKinney, who heard the bulk of the pre-trial motions -- and issued a temporary order barring the CFL from using the name Colts -- already has heard much of the testimony likely to come up at trial, said John Paul Reiner, a lawyer with the New York firm of Townley & Updike, which represents the NFL in the case.

Keeping the case in Indiana, rather than starting anew in Baltimore, would be a more efficient use of the federal court system, he said.

Pappas argued that the Colts do transact business here, such as $57 million worth of NFL merchandise sold in Maryland during 1993 -- proceeds of which are split evenly among the teams. The league also broadcasts games here, he said.

He estimated a trial in Baltimore would take about a week, and would contain enough new evidence that McKinney would not have a significant head start on the issues. Reiner said a trial in Indianapolis could take a few days.

The NFL won a court order this summer barring the CFL team from using the Colts name until the matter could be settled at trial. McKinney has scheduled a trial for Dec. 5 in Indianapolis.

Ned T. Himmelrich, a local attorney and trademark specialist not connected with the parties in the case, said the CFL team has a better shot at winning here rather than going back before a judge who already has ruled against them.

"They know they are dead if they stay in Indianapolis," Himmelrich said.

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