Tuesday, July 22, 2014

Cubs File Lawsuit Against Unofficial Mascot Billy the Cub

Chicago Cubs Baseball Club, LLC v. Weier, et al., 14-cv-05507, Northern District of Illinois

Photograph of Billy the Cub, from Exhibit D of the Complaint

If you have been to Wrigley Field in the past several years, you may have encountered one of several large bears donning a Cubs helmet and wearing a #78 jersey wandering around outside the park and posing for pictures. Not to be confused with the Cubs new official mascot, Clark, Billy the Cub is actually a for-profit venture that has no affiliation with the team.

Clark, the Cubs official mascot introduced in 2014
Although the owner of the costumes has reportedly been rebuffed by the Cubs in his efforts to become the sanctioned mascot and has been the subject of cease and desist requests, the Billy the Cub costumers are still seen seeking tips around the neighborhood on game days. The Cubs have finally had enough, however, and it was likely this video showing the man inside the costume getting in a fistfight that was the tipping point in the Cubs initiating legal action.

Not surprisingly, the Cubs do not want to be associated with with these unsanctioned "mascots" and they allege in their complaint that the defendants "interact with Cubs fans by posing for photos or videos with the fans and engaging in other mascot-like activities (such as dancing with fans), and then seek to hustle those same fans for 'fees' or 'tips."  In addition to the explicit reference to the bar fight depicted in the YouTube video shown above, the Cubs further allege that the defendants have made profane and derogatory remarks to fans, including racial slurs, often in relation to the amount of the tip.

The Cubs specifically complain of trademark infringement, trademark dilution and violations of the Illinois Uniform Deceptive Trade Practices Act.  As for damages, they seek the permanent injunction of further Billy the Cub activities, a disgorgement of all profits, the delivery of costumes for destruction, punitive damages and attorneys fees.

The Lanham Act states in pertinent part:
(a) (1) Any person who, on or in connection with any goods or services,...uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of such person with another person
, or as to the origin,
sponsorship, or approval of his or her goods, services, or commercial activities by another
shall be liable in a civil action by any person who believes that he or she is or is likely to be
damaged by such act.  §43 (15 U.S.C. §1125).
It appears that the Cubs are on good legal footing here and at the very least, the threat of having to reimburse the Cubs for their legal fees would seem to be a pretty strong incentive for the defendants to discontinue their Billy the Cub operations, even if they have insurance coverage that will provide them with a defense.

It will be interesting to see if they have as much fight in them in the defense of this lawsuit as was seen at the bar.  

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