Recently The Markcast had on trademark and IP lawyer Michael Cohen to talk about the Old USFL vs. New USFL lawsuit. Most fans believe the Old USFL does not have a leg to stand on and that this case is over before it begins. However, Cohen says, not so fast.

Cohen was asked, since the trademark was lapsed by the Old USFL and not in their control, does that mean this lawsuit is a non-starter?

“I wouldn’t say that…. whether he(Steve Ehrhart) abandoned it. There are legal connotations that it was abandoned. So the actual trademarks, the federal filings, those registrations. Yeah, you’re right. Those did lapse, and they admitted in their court filings that they did let them go…. But was there still some use that occurred throughout that period of time since the 80s till now, and that’s what the whole lawsuit is about…

They claim that they continue to do quite a few things like apparel licenses. There was a talk about a movie in which there was some kind of film that was out. So through those channels, they continued to keep the name and the trademark rights alive.”

He talks about how Trademarks work, which is essential to this case.

“There’s one thing about having an actual federal registration and keeping that alive… You file with the United States Patent Trademark Office when you file for a trademark. That’s the government agency that issues trademarks. But even if you don’t have that, there’s still this common law concept of trademarks. 

You can still have common law rights to a trademark without federal registration. And those two levels of law sometimes compete with each other. 

A senior common law user can contest a later federal Registrar. And that’s the situation here: The Real USFL is claiming that they are the common law use and original users. Even if their federal rights lapsed, they still claim priority to the later trademarks that the new USFL later took over or filed new ones. So that’s what the issue is.”

If you want to learn all about this case, check out the show below.

There has been an update to the lawsuit that was scheduled for March 16th. It has now moved to the 28th. This is from u/jwrtf on Reddit about the latest on the case.

“Well, the judge ruled that their 30-minute video conference was not sufficient. Parties must now have a new conference before March 11th in an attempt to sort out their differences and/or settle. 

Should they not find it possible, both Real USFL and Fox will have to submit a declaration as to exactly what went right and what went wrong and why within three days of the meeting. 

Then only after BOTH parties have filed their declarations can Real USFL file another motion for a preliminary injunction but will have to wait a full three days.

This means that should they take the full three days each time, that – based on the schedule as originally submitted in their joint submission regarding Rule 7-3 – the soonest a hearing could be scheduled for the motion for preliminary injunction is likely not until the week of April 11-15″

April 16th is the day the league kicks off on both Fox and NBC, with the New Jersey Generals taking on the Birmingham Stallions. It looks like this case might come down to the wire.

Stay with USFL News Hub for more on this story.