"Bad Faith," or: Why Dirk Belongs Only to Dirk
Perhaps you recall: During the NBA playoffs, some locals launched the site DirkSwish.com, where they sold the T-shirt you see at right -- a rather popular tee, matter of fact, which sold for $19.99. Got some nice national pub, and the attention on The Ticket didn't hurt either. Turns out, though, the man on the tee -- one Dirk Nowitzki of Your World Champion Dallas Mavericks -- didn't much care for it. And so he hired attorney Robert Ward of Gardere Wynne Sewell to put a stop to it.
As we discover this morning, the case -- Dirk Nowitzki v. Happy Bulldawg Entertainment -- went before the National Arbitration Board, where, at the end of last week, Carol Stoner handed down her ruling in favor of the man known as Swish41 on Twitter. The guys behind the site claim they only sold the tee "at the request of the masses," and that they didn't mean any harm. But Stoner says: Um, no.
This Panel rules that, as Complainant has met its prima facie burden to establish that Respondent lacks rights in the mark, that the burden has shifted to Respondent to prove its rights in the mark. Here, Respondent has not met its corresponding burden of proof, through its recitation of vague allegations that two named individuals "made comments in person, via email, or via text message that indicated or suggested to Respondent's principals that Complainant had no objections to their use of his name."
Rather, such use remains unauthorized, and is at the expense of Mr. Nowitzki, his name and substantial goodwill, and constitutes disruption and evidence of bad faith registration and use.
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