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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke


Boston Professional Hockey v Dallas Cap, 510 F.2d 1004 (5th Cir 1975)

The National Hockey League (NHL) and thirteen of its member hockey teams1 brought this action to enjoin Dallas Cap & Emblem Manufacturing, Inc., from manufacturing and selling embroidered emblems depicting their trademarks. None of the symbols of the various team logos have been copyrighted. Defendant deliberately reproduced plaintiffs' marks on embroidered emblems and intended the consuming public to recognize the emblems as the symbols of the various hockey teams and to purchase them as such.

The district court denied Lanham Act relief and granted only limited relief for unfair competition, requiring solely that defendant place on the emblems or the \ package a notice that the emblems are not authorized by or have not emanated from the plaintiffs. The claim for damages was denied.

The difficulty with this case stemed from the fact that a reproduction of the trademark itself was being sold, unattached to any other goods or services. The statutory and case law of trademarks is oriented toward the use of such marks to sell something other than the mark itself. The district court thought that to give plaintiffs protection in this case would be tantamount to the creation of a copyright monopoly for designs that were not copyrighted.

The 5th Court of Appeals found three persuasive points. First, the major commercial value of the emblems was derived from the efforts of plaintiffs. Second, defendant sought and ostensibly would have asserted, if obtained, an exclusive right to make and sell the emblems. Third, the sale of a reproduction of the trademark itself on an emblem is an accepted use of such team symbols in connection with the type of activity in which the business of professional sports is engaged.

Reversed and remanded.

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