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Raptors in court battle over logo; Monster Energy says clawmarks too similar



There’s the battle on the court. Then there’s the battle in the court.

Win or lose the NBA championship, the Toronto Raptors will have to fight for possession of a team logo that — this week — seems almost as well-loved as the Maple Leaf.

Documents filed with the U.S. Patent Office’s trial and appeal board show that Monster Energy, makers of a popular energy drink, says the team’s logo of a clawed-up basketball is too similar to the one it uses.

Monster’s logo is of three jagged vertical gashes, resembling those from a claw, usually green on a featureless black background. Since 2014, the Raptors have used a basketball with three diagonal claw gashes.

Monster objected almost immediately after Raptors owner Maple Leaf Sports and Entertainment attempted to register the new logo.

“(Monster) has sold billions of dollars worth of goods under (its) mark,” say the company’s documents filed in June 2015. Since 2002, the company has used the three gashes on everything from rock concerts to clothes, as well as on the energy drink, it says.

“(Monster) will be damaged by registration of the (Raptors) in that the mark will dilute the distinctive qualities of (Monster’s) mark … and will lessen the ability of (Monster’s) mark to distinguish (Monster’s) goods.”

Maple Leaf filings point out that the Raptors have used a logo featuring three claw marks and a basketball since 1994.

The current logo is a development of the original one and is “the same or substantially the same,” Maple Leaf argues.

“(Monster) will not suffer added damage from the continued existence of the challenged applications.”

Monster recently asked the board, which is an administrative court within the U.S. Patent Office, to toss that argument out. It argues the different sets of Raptors claws are too different for one to be an outgrowth of the other.

The fight over who has the rights to use what look like traces from some large and violent beast has continued for four years, which is a long time in these cases, said Josh Gerben, a Washington, D.C., trademark lawyer.

“Normally, they’re going to work something out with the opposing party,” he said. “An adverse decision for either party is significantly problematic.

“The fact this has gone on for four years really tells a story that for whatever reason, the parties can’t figure out a way to settle this case.”

The judge will have to decide if consumers are likely to be confused by the two logos, said Gerben.

“In one case you have a very popular logo from an NBA franchise that everybody understands is Toronto Raptors. And on the other you, have a logo that everybody understands is Monster Energy.

“It appears on its face the logos are pretty different.”

Gerben pointed out that claws are quite commonly used in trademarked logos, which may further weaken Monster’s case.

Lawyers representing Monster were not immediately available for comment, nor were officials from the National Basketball Association.

It’s not Monster’s first patent action. The board’s website lists well over 200 actions the company is involved in — all since 2018.  

Monster has pursued the Raptors around the world, attempting similar actions in Canada and as far afield as Singapore and Peru, Gerben said.

At worst, he said, the Raptors could have to relinquish a logo now worn by what seems like half the Greater Toronto Area — although he said that’s highly unlikely.

Still, as they say on the sports pages, that’s why they play the games.

“Any time you’re in any court, you can lose,” Gerben said.

— Follow Bob Weber on Twitter at @row1960


Bob Weber, The Canadian Press

Note to readers: This is a corrected story. An earlier version referred to Josh Gerben as a copyright lawyer.

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Chief military judge’s court martial in limbo after deputy recuses himself




OTTAWA — The court martial for Canada’s chief military judge is in limbo after the judge overseeing the trial, who happens to be deputy to the accused, agreed not to hear the case over conflict-of-interest concerns.

Lt.-Col. Louis-Vincent d’Auteuil also outlined the reasons why he felt the military’s other three sitting judges would not be able to preside over Col. Mario Dutil’s trial in an impartial manner.

That has left the fate of Dutil’s court martial, seen by some as a critical test for the military-justice system, up in the air.

Dutil was charged with eight counts in relation to allegations he had an inappropriate relationship with a subordinate and knowingly signed a travel claim for $927.60 that contained false information.

Four of the charges were dropped at the start of the court martial last week, where Dutil’s lawyer challenged d’Auteuil’s impartiality and asked the presiding judge to recuse himself. A publication ban on details of that portion of the hearing has since been lifted.

In agreeing to the request, d’Auteuil said it was reasonable to believe he would be biased because of his relationship to several witnesses — which he believed also applied to other military judges.

The Canadian Press

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Lighthizer agrees to do whatever it takes to get new NAFTA passed




OTTAWA — U.S. trade czar Robert Lighthizer says he will work with Democrats to do whatever it takes to ratify the new North American free trade deal.

Lighthizer made the pledge in testimony today before the U.S. Senate finance committee as part of the Trump administration’s push to get the United States-Mexico-Canada Agreement ratified by a divided Congress.

Lighthizer’s appearance on Capitol Hill comes two days before Prime Minister Justin Trudeau meets President Donald Trump at the White House to give impetus towards ratifying the deal.

Oregon Sen. Ron Wyden, the ranking Democrat on the committee, says the new deal has “weak enforcement” provisions on raising labour standards in Mexico that he and his party want to fix.

Lighthizer says USMCA has stronger enforcement provisions than the old North American Free Trade Agreement, including improved labour rights in Mexico, but he’s open to making it stronger.

Lighthizer says he has had good discussions with Democratic House Speaker Nancy Pelosi and suggests that getting a ratification bill introduced in the lower house of Congress — a necessary first step towards U.S. ratification of the pact — might be weeks away.

The Canadian Press

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june, 2019

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