Decisions: Dec. 20, 2007

Contributory trademark infringement denied against pro basketball player

Case: Basketball Marketing Co. v. FX Digital Media
Court: 3rd Circuit
Date: Dec. 11, 2007 (unpublished)

Facts: Plaintiff, doing business as AND 1, organizes the Mix Tape Tour, a series of street basketball games featuring professional players including Tim "Headache" Gittens. Between November 2000 and December 2002, Gittens played in and helped organize games sponsored by the rival Streetball Legends tour. He also handed out autograph cards featuring a photograph of himself attired in official AND I apparel. After co-defendants FX Digital Media and Columbus Woodruff defaulted, the trial court summarily dismissed trademark infringement claims against Gittens and awarded him attorney fees.

Holding: Gittens "cannot be directly liable for any 'likelihood of confusion'" because he did not design or create the allegedly infringing Streetball Legends flyers and AND 1's "attempt to rely upon Gittens' use of its mark on his autograph cards, uniform, and on a basketball, is nothing short of frivolous." Claims of contributory infringement fail in the absence of evidence that "Gittens knew of any underlying infringement." The 3rd Circuit, however, reversed the attorney fees award, finding the plaintiff's claims "were at least colorable."

Attorneys of record: Barry Cohen of Thorp Reed & Armstrong in Philadelphia for Basketball Marketing; Joshua Gelman of Jacobs Law Group in Philadelphia, for Gittens.

To read the full opinion, click here.