Academic journal article Rutgers Computer & Technology Law Journal

Fan Websites' Use of Trademarks in Their Domain Names: Fair or Foul?

Academic journal article Rutgers Computer & Technology Law Journal

Fan Websites' Use of Trademarks in Their Domain Names: Fair or Foul?

Article excerpt

I. INTRODUCTION

Since 1846, when the first baseball game was played in Hoboken, New Jersey, (1) baseball has occupied a central place in the hearts and minds of millions of Americans. With the birth of this truly American sport, dubbed by many as the American "national pastime," (2) came the existence of its admirers, who are referred to as fans. While baseball and its fans have had a somewhat tumultuous relationship over the years, which include a World Series corrupted by gamblers in 1919 (3) and eight work stoppages, (4) the sport and its fans always seem to gravitate back towards each other in this symbiotic relationship. Baseball needs its fans, and its fans need baseball.

The advent of the Internet fueled baseball fans' cravings; statistics and information were only a few key strokes and mouse clicks away for any baseball fan who desired them. Jim Frasch and Bryan Hoch are two examples of baseball fans who believed that they were doing their favorite sport and their fellow fans a great service by operating free websites dedicated to the New York Yankees and New York Mets Major League Baseball teams, respectively. Baseball fans loved these websites and visited them to garner information regarding their favorite baseball teams. (5)

In the summer of 2002, amid discussions of another possible player strike and suspicion of possible steroid use by its players, (6) Major League Baseball Properties ("MLBP") sent cease-and-desist letters to Hoch (7) and Frasch, (8) informing them that their websites violated applicable Internet and trademark law.

This Note demonstrates how MLBP's claims against the operators of fan-based non-profit websites lack a legal basis and discusses the danger that situations such as this pose to the future of the Internet. Part I of this Note shows how the Internet has affected baseball and its fans. Part II discusses Internet trademark law. Part III looks at Frasch's and Hoch's fan-based, non-profit websites devoted to their favorite baseball teams and MLBP's claims against them. Part IV analyzes MLBP's claims and shows why Frasch and Hoch would prevail against such claims. Part V argues that Frasch's and Hoch's use of MLBP's trademarks constituted a fair use. Part VI discusses the disparity in bargaining positions that existed between MLBP and the website operators. This Note concludes by discussing how situations such as this will affect the future of speech on the Internet.

II. THE INTERNET AND ITS EFFECT ON BASEBALL

According to Howard Goldberg, Senior Vice President of Scarborough Sports Marketing, "[t]he Internet has enabled sports fans to have more frequent and in-depth information about their favorite teams and leagues." (9) While all sports fans can use the Internet to further their interest in sports, (10) Patrick Keane, an analyst at the Jupiter Communications Internet research company, feels that more than any other sport, "baseball takes the most advantage of the [Internet's] strengths." (11) Keane's assertion is based primarily on baseball fans and what he believes is their "obsessive quest for statistics and [their] desire to constantly compare players' performances." (12)

Because of this wealth of statistics and the demonstrated fan demand for access, baseball is the major American sport best suited for the Internet, and baseball fans certainly take advantage of this fact. Howard Goldberg believes that the Internet allows baseball fans to "make their passion for the game a part of their daily li[ves]" and "keep[] up with their favorite [Major League Baseball] teams." (13) Moreover, in 1988, before most Americans had even heard of the Interact, baseball fans were using the Internet and e-mail to chat about baseball and to archive baseball information. (14) According to a Nielsen//NetRatings study of Internet usage in 1998, eighty-nine percent of baseball fans said that they had used the Internet, compared to eighty-six percent of all respondents. …

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