Talking Footy

Posted: **Sat Mar 12, 2005 11:57 am**

Seriously, does anyone think the Kings stand a chance on this one? David and Goliath battle in the courts if it does in fact go to court.

Daily Telegraph wrote:
Kings to take AFL to court
by TIM MORRISEY, Basketball writer
March 12, 2005
http://dailytelegraph.news.com.au/story ... id=2795443

THE Sydney Kings are prepared to become the Darryl Kerrigan of Australian sport by taking the AFL to court over the commercial right to use the term "three-peat" should they win an historic third successive NBL title.

Kerrigan was the little Aussie battle in the hit movie The Castle who with his lawyer Dennis "It's the vibe" Denuto took on the Federal Government after they tried to take his house.

In the sporting version of The Castle, the Kings have a merchandising campaign based on the three-peat theme ready to role out should they beat Wollongong in the best-of-five championship. However, the AFL has held the Australian trademark on the term since July 16, 1999.

The financially struggling Kings could lose out on up to $100,000 in merchandising sales if they are prevented from using the trademarked term by the AFL, who generated $196.3 million in revenue last year.

"We might just end up in a war with the AFL," Kings legal counsel and shareholder John Kench said.

"We are definitely prepared to fight them on this one."

However, unlike Denuto in The Castle, Kench, who specialises in trade practices law, believes the Kings have more than just a vibe to win a trademark case against the AFL if it does go to court.

"If the AFL haven't used three-peat on any clothing in the last three years then the trademark is expunged and removed from the register," Kench said.

"If [three-peat] is liable to be removed due to non-use then we are free to go on and use it.

"If the AFL disputes this they will have to take out an injunction and then try and claim damages and try and disrupt what we are trying to do."

If that legal line of argument falls down Kench has a plan-B back up, claiming that the term three-peat is now part of our common language, therefore it cannot be trademarked.

"We have another argument that the term three-peat is possibly generic," Kench said.

"You can't get a monopoly over generic terms.

"The fact you've a registration down at the trademarks office doesn't mean it is not immune to removal.

"You can trademark a term before it comes generic but once it is generic you lose the trademark.

"Three-peat is in the Websters' dictionary in the United States and the Australian Concise Oxford dictionary."

The Daily Telegraph revealed that the Kings fired off an urgent letter via fax to AFL chief executive Andrew Demetriou seeking clarification as to whether the AFL has used the term three-peat commercially on Wednesday.

As of yesterday the Kings were still waiting for a response to their letter from Demetriou while the AFL also didn't return The Daily Telegraph's calls on this subject either.

Former Los Angeles Lakers star Byron Scott is credited for coming up with the term three-peat in 1988 after his team won back-to-back NBA titles.

However, it was then Lakers coach Pat Riley who trademarked the word three-peat on November 7, 1988.

The Detroit Pistons denied the Lakers' three-peat by winning the 1989 NBA championships but Riley cashed in on his registration when Michael Jordan's Chicago Bulls pulled off a three-peat performance from 1991 to 1993.

Posted: **Sun Mar 13, 2005 1:13 pm**

It amazes me just how Americanised this country is becoming.

Posted: **Sun Mar 13, 2005 5:35 pm**

Hmmn I think his plan B is pretty dodgy. It may be in the dictionary but does that mean its generic? Youi're studying law beaussie whats your view? Maybe the kings will get it? I know you think nothing can beat the AFL beaussie

but the three year thing if correct should work shouldnt it? Or maybe we should be asking barry bollocks for answers on this one. Barry? You around? Is beaussie going to be bitterly dissapointed as the AFL loses some dodgy trademark?

Personally i think the fact the AFL is taking their time might mean the kings are onto something.

Posted: **Sun Mar 13, 2005 6:01 pm**

Daily Telegraph wrote:
Kings campaign strikes a hurdle
By TIM MORRISSEY
March 11, 2005
http://dailytelegraph.news.com.au/story ... id=2790217

SYDNEY'S plans to cash in on a merchandising campaign centred around a "Kings three-peat" theme should they win an historic third successive NBL title could be derailed by the AFL.

To their dismay the Kings have discovered that the AFL holds the trademark on the word three-peat which threatens to stop the defending back-to-back NBL champions using three-peat for commercial gain.

With the Kings' best-of-five championship series against the Wollongong Hawks starting tonight The Daily Telegraph can exclusively reveal that Sydney chief executive John Overs fired off an urgent letter via fax machine to AFL boss Andrew Demetriou on Wednesday.

Overs is seeking clarification from the AFL to see if they are willing to allow the Kings commercial use of the term three-peat if they win their final series against the Hawks.

"We are going to be doing Kings three-peat memorabilia, newspaper promotions around the term, a three-peat clothing line, anything to do with basketball and three-peat because no team in the NBL has ever won three in a row," he said.

"I'd love for the AFL to be very co-operative from one sport code to another sport code.

"If they are not using it then why shouldn't the Kings be allowed to use it if we win the championship for the third time in a row."

Demetriou confirmed yesterday that the AFL has been the registered owner of the three-peat trademark for Australia since 1999, however, he is unaware of any letter from the Kings.

"I have yet to receive any correspondence from the Sydney Kings," Demetriou said.

"Until I see that correspondence it's impossible for me to comment."

Although they are in danger of getting ahead of themselves the Kings through their legal counsel and shareholder John Kench are believed to be examining their options.

I guess it will be up to the AFL as to whether the Kings get to use the term. Surely the can co-operate on this issue. Oh and the Kings have to win the GF first.

Posted: **Sun Mar 13, 2005 6:05 pm**

Yes, Trademark Law, a very specialised area indeed.

I can recall doing my Bar Practice Course many years ago and I was asked to participate in a moot on an issue of some delicacy. I was to proceed with an action against the corporations Wendys and Donut King who tried to trademark the term "Muffin."

I was representing Madam Lash who was trying to open a sex shop called "Muffin Maddness" and the American corporations were seeking an injunction preventing the business from opening on the grounds that the word "muffin" was trademarked to them.

My submissions were admirable - the term muffin has been used for nigh on 100 years to refer to the warm, moist and erotic groinal area of the female anatomy. I argued that like muffin's of the food variety they come in many shapes, sizes and varieties. I also submitted that generically, some males only liked eating the top's of the muffin and sometimes let the exciting but goey centre go untasted and undiscovered.

My case was ultimately unsuccessful, allowing Wendy's to continue to poison customers, however, the research and preparation for the moot, in my opinion, has made me a better barrister, more interested in pleasing my client's needs in every way possible!

Ahem, on the current facts before me, it appears that the AFL have been advised to use "stonewall" tactics against the Kings and simply ignore all correspondence from them. Ultimately it will force the kings to make a decision to either sue or allow the case to die, hoping that they cannot raise enough funds for a protracted legal dispute.

Barry Bollocks esq
In-Chambers

Posted: **Sun Mar 13, 2005 6:12 pm**

I reckon you're right there croc. I wouldnt be surprised if the AFL are holding out. I'm very worried for the kings if a case begins. I still remember beaussie telling me how he met the part owner after the poor bastard had to ask beaussie for a ciggie. Was he wearing a flannelette jumper and black jeans by any chance beaussie?

Posted: **Sun Mar 13, 2005 6:20 pm**

Interesting thoughts and history on the matter at hand there Barry.

I guess its onto plan B for the Kings if the AFL don't co-operate.

"If the AFL haven't used three-peat on any clothing in the last three years then the trademark is expunged and removed from the register," Kench said.

"If [three-peat] is liable to be removed due to non-use then we are free to go on and use it.

"If the AFL disputes this they will have to take out an injunction and then try and claim damages and try and disrupt what we are trying to do."

I've been able to find that the AFL has indeed used the trademarked term "three-peat" with Brisbane Lions merchandise.

http://shop.AFL.com.au/lions/category.a ... hip&Page=1

I guess if the AFL doesn't co-operate and the Kings proceed, then an injunction and a claim for damages will be required. The Kings as I said in a previous post have to of course win the GF in the first place though. That is now looking highly probable with the Kings leading the Hawks as we speak in game 2 of the GF.

Talking Footy

Sydney Kings to Take AFL to Court

Sydney Kings to Take AFL to Court