We have just learned that the former owners and executives from the original USFL are suing Fox Sports to halt the launch of the new USFL, set to begin play on April 16th. They allege that the new USFL misuses the old league’s branding.
Their lawsuit was filed Monday in California, alleges trademark infringement, false advertising, and false association by the new league. Calling it “Fox’s USFL franchise is an unabashed counterfeit.”
What they want at this time is an injunction to prevent the new USFL from using any names or logos from the old USFL—basically making the league change its whole brand and to do this before the league launches.
The issue at hand is who actually owns the rights to the USFL. You can read the full lawsuit here. That is where things get sticky when you read page 11 of the complaint. Fox Sports claims that the USFL had been defunct for more than 30 years and that it had abandoned its trademarks.
Press release about the lawsuit for the old USFL.
“FOX Sports’ USFL is scheduled to begin play this spring, in large part using the same franchise names, logos and other materials associated with the original USFL. The USFL operated from 1983 to 1985 and launched the careers of players such as Steve Young and Jim Kelly. Since that time, the league’s owners and executives have preserved its legacy through displays at the Pro Football Hall of Fame, licensing agreements for fan apparel, and an authorized documentary and book about the league.
FOX is trying to reap where it did not sow and profit from confusion among fans of the real USFL, by claiming the legacy of something it didn’t build,” says Nicholas Matich of the McKool Smith law firm, which represents the Real USFL LLC, the organization of former USFL owners and executives. “The Real USFL is acting to protect the legacy of the players, owners, coaches, and staff of the historic league.
Quite simply FOX is claiming to be something that it’s not—the heir of the 1980s league that launched numerous hall-of-fame careers and changed the game of football.”
Back in June, The Markcast had on Steve Ehrhart, the former USFL Executive Director and center of the lawsuit between the Old USFL and New USFL.
Ehrhart talked about what he did after the infamous lawsuit against the NFL.
“I’m involved, I was elected to be the last chairman of the executive committee of the USFL after the infamous lawsuit… I was unfortunately tapped to be in charge of splitting up the proceeds from the lawsuit. People forget that we did win the $3.76 check, which I still have. I never cashed out, but they did pay us nearly $6 million in attorney fees… I distributed that…. I’ve sort of been the guy elected to maintain the legacy and the rich history of the USFL over the years. And we’ve done that. We’ve had reunions, we’ve had events. We’ve kept a bank account all these years. We have some licensed merchandise that sold through a number of sites. When people talk about they go to a site. Most of those are the retails that are official, wholesaler sells… we get those reports on a quarterly basis. So we’re still around. We certainly haven’t been playing ball, but after this announcement (In June that the USFL was coming back) that came out surprised everybody that had been involved in the original USFL, I must have received eight or ten calls immediately.”
He talked about how no one, at the time of the recording, from the USFL reached out to them about the trademark. In the lawsuit, we learned that the league did have a meeting with people from the old USFL after this recording.
“Whether the lawyers say, well, they haven’t been using it enough, but that’s not true. We’ve been using it.
But our goal and I’m here on your show today to say that our goal is not to get into an antagonistic situation. It’s not to get into a legalistic issue. What we just want to do is make sure that there is going to be a resurgence of the good name of the USFL. We want to make Dog on sure that it’s done right. “
He was asked about the USFL Trademark and who exactly owns it, which is the meat of this issue.
“I’m not trying to be an expert in it. But I guess if you register a trademark or a logo or something like that and you say that, well, it hasn’t been in use for X number of years. Then the trademark office, then they’ll say, does anybody have objections?… You write in and say, wait a minute, it has been in use and then you go through that long process. So I think that’s where it is now. There’s been no acquire…. I don’t know that anybody’s ever acquired anything. They may have sent in a request to register and then I guess it’s the Copyright Trademark office and send you a notice and then they start a hearing process…. That’s why I say we’re not trying to get into this to say, okay, you can’t use it. What we do want to do is have a voice and make sure that if anybody uses it, does it in a way that’s respectful and will be successful.”
He was asked again later ion the interview, point-blank, whether someone actually owns the copyrights, trademarks, and franchise names.
“I’m not going to try to be a lawyer on this. I can tell you these are facts, though. The facts are that we’ve had a bank account all these years. Facts are that we’ve been licensing merchandise. I could read you the last quarter’s report of how many Birmingham Stallions Jersey were sold and how many USFL 1983 Champions were sold. And there’s some value in what we earned and paid for back then, and it still kept that name pristine for all these years.”
They talk about Trump in the USFL, other spring leagues coming and failing, and what he thinks will happen in the next six months, which is around this time. Worth a full watch below. They also talk to Michael Cohen, an IP and Trademark Attorney, and Kyle Smith, The USFL Project Executive Director.
I doubt Fox Sports and its lawyers would use the USFL brand, not knowing full well they would win in any court case. Also, just because you keep a bank account open and get money for merchandise if you don’t own the trademark, do you really have a right to do that?
It is an ugly situation for both sides. We will have to let the courts decide on this one. It will be interesting to watch it unfold. At the time of this writing, we are 46 days from the kick-off of the 2022 USFL season.