Stoller Strikes Out: 7th Circuit Affirms Brett Brothers Non-Infringement Ruling

Observing that "were there a Hall of Fame for hyperactive trademark litigators, Stoller would be in it," the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court's ruling in the Brett Brothers infringement litigation. As discussed here at the TTABlog, U.S. District Judge David H. Coar had granted Brett's motion for summary judgment of noninfringement, cancelled Stoller's U.S. Registration No. 2,892,249 for the mark STEALTH for "baseball, softball, t-ball bats," and awarded attorneys' fees to the defendants. Central Mfg., Inc. v. Brett, Appeal No. 06-2083 (7th Cir. July 9, 2007). [mp3 of oral argument here].


The appellate court decision begins with a fond re-telling of the famous George Brett "pine tar" incident (see video below), in which Brett and the Kansas City Royals ultimately triumphed on appeal to the league commissioner. The court noted that the instant case "presents another (albeit a less compelling) appeal of a dispute involving George Brett and a baseball bat."

The court also provides a not so fond review of Leo Stoller's litigation history, pointing out that trademark litigation "one might say is the essential part of his business strategy."

"In fact, Stoller's cases have generally proven so frivolous and wasteful of court resources that since this appeal was filed the Northern District of Illinois has enjoined him or any of his companies from filing any new action in the district's courts without first obtaining the court's permission." (TTABlogged here).

The appellate court reviewed the record and found "absolutely nothing ... upon which any reasonable person could conclude that Central and its predecessors actually sold 'Stealth' baseballs prior to Brett Brothers first use of the mark in 1999."

Judge Coar was correct in ordering cancellation of the STEALTH registration for baseball bats. As to the award of attorneys fees, Judge Coar again was right on:

"[Central] filed an infringement lawsuit without evidence of any sales of baseballs or baseball bats to support its claim to rights in the 'Stealth' mark for such products. It ignored requests to produce documents to support its claim, forcing the defendants' lawyers to go to court to compel action. Stoller offered confused, misleading deposition testimony, with unfulfilled promises of cooperation. And the documents he eventually produced made a mockery of the entire proceeding. We have no trouble in upholding the award of fees and costs."

TTABlog comment: Well, I guess you could say that Leo is in a slump. He's gone 0 for 2007. Next stop, the Supreme Court!

TTABlog Update: Eric Goldman at his Technology & Marketing Law Blog notes here that the "pine tar" video is no longer available. Apparently, Major League Baseball made a copyright claim. Professor Goldman wonders whether, by including a citation to the YouTube video in its opinion, the Seventh Circuit may have committed contributory copyright infringement.

Marty Schwimmer, at The Trademark Blog, raises the key question here: how could pine tar on the barrel of the bat increase Brett's ability to hit a home run?

Text Copyright John L. Welch 2007.