Las Vegas Sun

October 19, 2017

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Applications for ‘Las Vegas Raiders’ name off the mark

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John Locher / AP

Matt Gutierrez carries a Raiders flag by a sign welcoming visitors to Las Vegas, Monday, March 27, 2017, in Las Vegas. Experts say acquiring a trademark for a brand as famous as the Raiders is next to impossible.

Lane Blue’s longshot plan sounded as simple and breezy as you would expect from a man explaining it while lounging on a sun-bathed balcony in Portugal’s wine country.

Trademark the ‘Las Vegas Raiders’ name before owner Mark Davis does. Tell Davis he can’t move the team because you own that name. Make some Kardashian money selling it back to him or else you become the hero who kept the Raiders in Oakland.

“Now you’re either going to have to give me the $700 million or a billion, or you’ll have to stay in Oakland and I’ll give it back,” said Blue, an air-freight company owner from Fresno, Calif., last week in a phone interview from Algarve.

Like a half-dozen others who paid up to $275 to apply for the Las Vegas Raiders name when news of the team’s potential move surfaced on Jan. 29, 2016, Blue saw his bid denied by the federal government. Yet those filings gummed up a system that gives priority to the first people to submit applications regardless of how valid their claim is.

Among those joining Blue at the head of the line were a Las Vegas clothing company owner, a Houston pain-management doctor and a Boston gym owner. Chanel Inc. in March won a $240,000 default judgment against the Las Vegas company, Nella Chunky LLC, for selling counterfeit goods.

“You want to make sure you get filings in place before the public announcement is made to avoid other enterprising folks from filing before you,” said Patrick Jennings, a sports trademark attorney with Pillsbury Winthrop Shaw Pittman LLP in Washington, D.C.

That means the three applications for the various uses of the Las Vegas Raiders name put in by the team on Aug. 20 wait in limbo while attorneys with the United States Patent and Trademark Office evaluate earlier filings. The trademark office informed the Raiders on Feb. 14 that the team’s applications were suspended until the office deals with two "San Diego Raiders" filings and a "Sin City Raiders" claim from third parties. Nine people in total filed for the San Diego Raiders name.

Raiders general counsel Dan Ventrelle and Arnold & Porter LLP, the team’s contracted legal firm, did not respond to requests for comment. Trademark attorneys roundly agreed the trademark office eventually will grant the team the Las Vegas name and other applicants will fail.

“These people think they’re going to cash in and 99.9 percent of the time, they’re wrong,” Jennings said.

Ross Notaroberto, the Boston gym owner and industrial equipment salesman, knew nothing of the trademark process before a conversation with an attorney friend led to his application. Notaroberto does not make clothing, the trademark use for which he filed because he thought it had the best chance of acceptance.

“I really didn’t have many intentions,” Notaroberto said. “It was out of boredom, really.”

Lane Blue was among those who applied for the "Las Vegas Raiders" trademark when news of the team’s potential move surfaced in January 2016.

Lane Blue was among those who applied for the "Las Vegas Raiders" trademark when news of the team’s potential move surfaced in January 2016.

Notaroberto watches Patriots games because he lives in New England, but otherwise does not follow football regularly. He harbored no dreams of cashing a Raiders lottery ticket if his application succeeded.

“I would’ve been happy with a couple of tickets to a game,” Notaroberto said.

Blue preferred stopping the Raiders’ dash to receiving cash, his plan essentially to lie down in front of the team’s moving truck. For a man so devoted to the Silver and Black that he paid $2,500 for a painting by oft-arrested former Oakland quarterback Todd Marinovich, keeping the Raiders from moving rated atop his priorities.

Nine days before staking his claim to Las Vegas Raiders, Blue also applied for the "San Antonio Raiders" name when reports of owner Mark Davis’ potential interest in that city came out.

“If I own the trademark that’s worth possibly millions of dollars, maybe I can talk them into staying,” Blue said.

Acquiring a trademark for a brand as famous as the Raiders is next to impossible, Jennings said. The trademark office regularly weeds out false or confusing trademark claims, and rightful owners can challenge a successful trademark application for up to five years after approval.

This shirt was submitted as an example of potential use of the Las Vegas Raiders mark by Nella Chunky LLC, a company based in Las Vegas. The application claims the shirt was used as early as March 2015.

This shirt was submitted as an example of potential use of the Las Vegas Raiders mark by Nella Chunky LLC, a company based in Las Vegas. The application claims the shirt was used as early as March 2015.

“You don’t have to have trademark registrations to have trademark rights,” Jennings said. “It’s not like if they lost their registrations that their rights would just evaporate.”

Established law tilts heavily toward demonstrated use of the trademark and common sense in that regard, said Barry Werbin, an intellectual property attorney with Herrick Feinstein LLP in New York.

“Whatever brand you have, it’s a valuable asset, but you’re also in a sense protecting your consumer base, your fan base, from being confused,” Werbin said. “The more famous a mark is, the bigger universe they legally have to stop third-party uses.”

That reality favors the Raiders, a team established in 1960 with a brand valued at $108 million in 2016 by Forbes. The team needs the formal trademark, though, in order to create merchandise and materials with the Las Vegas Raiders name.

An applicant in the Raiders’ situation could choose to let the trademark office deny misleading claims to the Las Vegas Raiders name — which can take months or even years in some cases — or to pursue the applicants more aggressively. The Raiders could file a letter of protest with the trademark office or contact the applicants directly with legal threats.

“For a trademark lawyer, it doesn’t take much effort to knock those (applications) out separate from the patent and trademark office,” Jennings said.

Failure also costs money — none of the rejected applicants will receive back their application fees.

“You’re pretty much throwing that money away,” Notaroberto said.

Notaroberto still enjoyed the learning process of applying for a trademark. That might be all an applicant can expect, Jennings said, calling it “worthless” to attempt to poach a famous mark.

“You’re kind of buying a pig in a poke. You’re not buying anything,” Jennings said.

Blue, however, bought a few more months of faint hope of keeping his beloved team from moving south. Will he stick with the Raiders after they move from Northern California for a second time in 2020?

“I hate to say it, but yes, yes I will.”

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