The Eleventh Circuit issued an important trademark decision yesterday, holding that the First Amendment protected an artist’s right to paint Alabama football scenes because the depiction of the Alabama uniform (which the University contends is a trademark) is necessary for the historical accuracy of the scene. Since 1979, Daniel A. Moore has painted famous football scenes involving the University of Alabama . The paintings feature realistic portrayals of the University’s uniforms, including helmets, jerseys, and Alabama’s crimson and white colors. Moore has reproduced his paintings as prints and calendars, as well as on mugs and other articles.
Some folks think so, namely competitive skee-ball league operator Full Circle United, LLC. On Tuesday, Full Circle lodged a breach of contract and trademark suit in New York, claiming game manufacturer Skee-Ball Inc.’s “skee-ball” mark is generic. Full Circle did this as a defensive maneuver because they were being sued by Skee-Ball, Inc. for trademark infringement in California over its use and registration of the mark “Brewskee-Ball.” First of all, one of the most interesting aspects of this story is that there IS a competitive Skee-Ball league– from New York, to California, to Texas (“from Skee to shining Skee”). Second, is Skee-Ball a generic term? That depends on a lot of different factors–has Skee-Ball, Inc. diligently and faithfully treated it like a trade mark? Have they protected it when others have not treated it as a trademark? Is there another word for Skee-Ball? What do consumers think? These are the types of questions the hired gun experts will be debating in this case, assuming it doesn’t settle. There is a great deal of risk for the holder of mark that could possibly be generic. It is often wise to settle the case before you submit that all important question to the “jury lottery.” If you’ve got a trademark, make sure you are doing everything you can to avoid it being deemed generic. This can save you a lot of heart-ache down the road.
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