As announced last week, I am the newest columnist for MMAJunkie.com. My first piece--about the implications of a post-fight sucker punch such as the one Paul Daley landed on Josh Koscheck at UFC 113--appeared this morning. If you have ideas for future columns, please send them my way.
Tracey Lesetar at Sherdog has posted a detailed update on the status of Zuffa's trade secrets case against Bellator. In short, discovery in the case is proceeding despite Bellator's requests to stop that expensive process until the court rules on Bellator's pending motion to dismiss for "lack of personal jurisdiction."
The Fight Lawyer first reported the court's ruling denying the stay of discovery here.
Although you never want to lose a motion early in a case, this was a fairly minor skirmish. The big issue is the pending motion to dismiss. Essentially, Bellator claims it does not have enough contacts with the state of Nevada to be sued there (as explained more fully in Lesetar's piece). Briefing on that subject was completed by both sides in October 2010, and oral argument was requested, but there is not yet a hearing scheduled.
Last month Zuffa sued Ubisoft over the packaging of the new "Fighters Uncaged" video game. Justin Klein has the details of the suit in his piece at MMA Payout, but the crux of the case is that the back of the game box features the phrase "Become the ULTIMATE FIGHTING weapon!"
The case is a slam dunk for Zuffa. Zuffa has registered federal trademarks for not only "The Ultimate Fighting Championship," but also "Ultimate Fighting." The latter is registered in the trademark class covering computer games. By putting ULTIMATE FIGHTING in all caps, the game's marketers were clearly trying to capitalize on the name recognition of the UFC and The Ultimate Fighter television show.
Zuffa has at least three reasons for bringing this lawsuit. The first one is obvious. Zuffa makes serious money from licensing its trademarks to THQ which produces the UFC Undisputed video game series. If Dana White is willing to go to war with EA Sports, he sure isn't going to be pushed around by Ubisoft.
The second reason is the big picture concern that the UFC doesn't want to be associated with fighting outside the context of sanctioned mixed martial arts. For that reason, it won't even put on events in states where mixed martial arts is legal, but unregulated. Indeed, the Ubisoft complaint reads like a UFC press release with paragraphs like this one:
When Zuffa took over the fledgling UFC brand in 2001, MMA was banned in most states and had been branded by Sen. John McCain, Arizona Republican, as "human cockfighting." Since then, Zuffa has worked diligently and tirelessly to clean up MMA's image, improve fighter safety and transform MMA into a legitimate sport.
The last thing Zuffa wants is to be affiliated with a game where players "charge head first into the vicious world of illegal free fighting tournaments."
The third reason for filing suit is not discussed in the complaint, but it is, in my view, the most important. If Zuffa fails to protect its trademarks, a court could later find that the marks are abandoned. This is of special concern for "Ultimate Fighting" because the mark already runs the risk of being deemed generic.
If a mark becomes widely used to indicate a type of object (or in this case a type of sport), it can fall victim to "genericide" and become available for anyone to use. This has happened with previously trademarked terms like aspirin, escalator, and zipper. To avoid this, some brands like Xerox even run advertisements in an attempt to avoid genericide by encouraging media outlets to use their trademark properly (by referring to Xerox brand copiers rather than "making Xeroxes.")
We all have colleagues that stare at us blankly if we refer to MMA or even "mixed martial arts." If, however, we say "ultimate fighting" many of those same people know what we're taking about. This means Zuffa is walking a tightrope. It's great for the company if people consider its registered trademark synonymous with the sport, but it would be terrible if it could not stop competitors from referring to their own Ultimate Fighting events.
David Nelmark is a partner in the Des Moines, Iowa law firm of Belin McCormick, P.C. He helps individuals andMore...
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