Affliction Sued for Trademark Infringement

November 22, 2010

On November 16, 2010, a complaint was filed against Affliction, Inc., Affliction Retail, Inc., Affliction Holdings, LLC, Affliction Retail, LLC, and Affliction Entertainment Group, LLC in the United States District Court for the Central District of California by Timothy Sean O’Brien and Livfast, LLC.

According to the allegations in the complaint, “O’Brien is a professional motocross rider and a businessman.”  The Livfast webpage provides that the company “is owned and operated by Tim O’Brien.”

Plaintiffs alleged that “[n]o later than October 8, 2004, Livfast first used the Livfast name on its clothing, including shirts, pants and hats and has extensively used the Livfast Trademark (defined below) on its goods and services on a continuous basis since that time.”  Further, plaintiffs allege that Livfast applied for a trademark registration on July 31, 2003 “for the word mark “Liv Fast” with the United States Patent and Trademark Office [] and the USPTO granted Livfast a registration for its Livfast trademark (Registration No. 2957726) on May 31, 2005 [].”

Livfast claims that it “recently discovered that Affliction bas been infringing upon the Livfast Trademark by using a virtually identical name, the Live Fast name and the Affliction Live Fast name, on its clothing as well as other uses, which is likely to lead to confusion in the marketplace and has actually caused confusion in the marketplace.”

The Affliction website provides the Affliction logo that appears to be at issue as it contains the words “Live Fast.

According to the allegations in the complaint, (1) in March 2010, the USPTO “rejected Affliction’s request to register the ‘Affliction Live Fast’ name as its trademark” because “‘of a likelihood of confusion with the mark in U.S. Registration No. 2957726’”; (2) in July 2010, “the USPTO rejected Affliction’s request to obtain a trademark registration in the name ‘Live Fast,’ stating that the ‘Live Fast’ name and the Livfast Trademark are ‘highly similar overall,’ that the goods are ‘very closely related and some are identical and/or legally identical’ and that the trade channels are similar”; and (3) in October 2010, “after Affliction requested the USPTO to reconsider its position on its use of the ‘Live Fast’ name, and after Affliction submitted specimens showing how it uses the ‘Affliction Live Fast’ name on its clothing goods, the USPTO again rejected Affliction’s request to register the ‘Live Fast’ mark.”

Plaintiffs allege that through “Affliction’s continued use of these names, Affliction has committed and continues to commit willful trademark infringement.”

Plaintiffs assert claims for “Federal Trademark Infringement,”  “False Designation of Origin,” State Trademark Infringement and Unfair Competition,” Unfair Competition,” “Unjust Enrichment,” Cancellation of Trademark Registration,” “Accounting,” and Declaratory Relief.”

Affliction is no stranger to litigation.

As I have posted at my Fight Lawyer website, Affliction recently settled a trademark infringement action with Chrome Hearts with similar allegations, it recently settled a copyright infringement action with Freeplay Music, LLC; it recently filed a lawsuit against Oficina De Representaciones Mundiales S.A De C.V. and Eduardo Kurian (and is a counterclaim defendant in that litigation), its alleged “exclusive distributor in Mexico for the Affliction and Sinful clothing brands[],” and its litigation with Fedor and M-1 appears to still be going strong.

Justin Klein is an attorney at Satterlee Stephens Burke & Burke LLP in New York City where he concentrates his practice in commercial litigation and represents clients in the fight industry.  He regularly addresses current legal issues that pertain to combat sports, including efforts to legalize MMA in New York, at his Fight Lawyer website.  He is a licensed boxing manager with the New York State Athletic Commission as well as the founder and Chairman of the Board of the New York Mixed Martial Arts Initiative, a non-profit organization that gives inner city youth the opportunity to experience the emotional and physical benefits of martial arts training.  Justin lives in New York City where he trains in jiu jitsu and boxing.

DISCLAIMER

The information in this post and on my site consists of my opinion only, i.e., it is not the opinion of my employer or anybody else. In addition, and because this is my opinion, it is not intended to be (and is not) legal advice or an advertisement for legal services. This post provides general information only. Although I encourage interested parties to contact me on the subjects discussed in the articles, the reader should not consider information on this site to be an invitation for an attorney-client relationship.  I disclaim all liability in respect to actions taken or not taken based on any contents of this post. Any e-mail sent to me will not create an attorney-client relationship, and you should not use this site or my site to send me e-mail containing confidential or sensitive information.

UFC 123 Storylines: Rampage vs Machida

November 22, 2010

MMAPayout will be taking a look at the storylines heading into UFC 123: Rampage vs. Machida, which was held at The Palace at Auburn Hills just outside Detroit, Michigan on Saturday, November 20th.


‘Rampage’ ready to ‘put on a great show’ at UFC 123

The Ultimate Fighting Championship returns to Metro Detroit Saturday for the first time since 1996 and intends to put on a show for fans hungry for professional mixed martial arts bouts.

Organizers and fighters claimed Wednesday that Saturday’s “UFC 123: Rampage vs. Machida,” will be an event fans won’t want to miss…

“I love bringing fights back to old fight towns,” UFC president Dana White said in a press conference at Detroit’s MGM Grand Casino. (The Detroit News)


Dana White eager to bring UFC back to metro Detroit

“To all the fans who have lived in Detroit or watched on TV or pay-per-view, watching it live is nothing like watching TV; it’ll be the most exciting event you’ll ever see live,” White said at a news conference this afternoon alongside six main-card fighters at Detroit’s MGM Grand casino.

“Detroit is one these cities I love going to, it’s a big fight city, and I love bringing big fights back to fight towns who haven’t had them in awhile.” (Detroit Free Press)


Mixed martial arts draws crowd to Detroit Athletic Club

Penn, Quinton “Rampage” Jackson, Joe Lauzon, George Sotiropoulous, and several others sparred with trainers for about 10 minutes on the squash court turned makeshift combat zone.

The practice attracted more than 50 spectators, including media members from as far away as Australia.

“Before a guy had a ball in his hand, or a bat, he was fighting, and people were watching,” said Adam Thompson, a 27-year-old TV reporter from Australia. “The growth of UFC is amazing, it’s exploding, the sport is bigger than boxing.” (The Detroit News)


Large crowd at Palace sees ‘Rampage’ win UFC match by decision

Based on the reaction from a sold-out crowd of over 16,000 at The Palace, professional mixed martial arts throwdowns inside an octagon-shape cage appear to fit perfectly in Michigan’s broad sports landscape.

“It was a good night,” UFC president Dana White said of the atmosphere. “We put on a lot of good fights with a lot of good guys. And you get some great moments when you have a stacked card.

“The Detroit crowd was awesome, this place was rockin’ like we knew it would.” (The Detroit News)


EVENT NOTES:

– UFC 123 draws 16,404 attendance and $2.1 million live gate. (MMAJunkie)

– Dana White: Scored the fight 2 rounds to 1 for Rampage, no immediate rematch between Rampage and Machida. (Press Conference)

– Dana White: George Sotiropoulos vs Dennis Siver, BJ Penn vs John Fitch will take place in Sydney for UFC 127. (Press Conference)

– “Rampage” Jackson: Disappointed in performance, almost had to pull out of fight due to illness and a fever. (Press Conference)

– Josh Gross: Lyoto Machida vs. Rampage Jackson was Jeremy Lappen’s dream fight. When he ran WFA, these were the two guys he aimed to build into a bout. (Josh Gross)

– Dana White: The UFC will do around 30-31 fights in 2011, working on 2 deals right now that will put them in over a billion homes (Press Conference)…

Payout Perspective: We previously discussed how the WEC merger impacts the UFC, mentioning that it would need to compensate for losing 8 WEC shows in 2011.  In 2010, the UFC ran 24 events along with 8 events from the WEC, which gave Zuffa a total of 32 events to work with last year.  White announced they will try to match the same event output next year, targeting about 30-31 events.  He also mentioned that he is finalizing a TV deal which would put the UFC in over a billion homes, which one would think deals with landing a TV deal in China since they claim they are in 500 million homes right now.

– UFC 123 was the main story on ESPN, even on ESPN Mobile. Lyoto Machida, Rampage, and UFC 123 were trends on Twitter throughout the day.

– Karo Parisyan was released from the UFC after his loss and bad showing at UFC 123. On the other hand, Tyson Griffin will not be released, despite losing 3 fights in a row, since Dana White did not agree with the judges decision which awarded Nick Lentz as the winner. (MMAWeekly)

– UFC 123 Bonuses: KO of the Night: BJ Penn, Submission of the Night: Phil Davis, Fight of the Night: George Sotiropoulos vs Joe Lauzon $80,000 each (Press Conference).

White honored at 2010 Sports Media Marketing Awards

November 21, 2010

UFC President Dana White was honored with the Sports Media Marketing’s Game Changer Award Thursday night in New York. The award was presented to him by PromaxBDA, a global nonprofit organization dedicated to the development of new technologies, applications, business models and industries.

From the Sports Media Marketing web site:

The Game Changer Award recognizes a cultural innovator who, through the development of new strategies, business models technologies, applications and industries, has transformed the business of Sports Media and Sports Media Marketing.

White was recognized especially for embracing social media and engaging UFC fans and sponsors in a bold and innovative fashion, something that hasn’t been accomplished by any other sports leader.

Payout Perspective:

White stands out from executives of other sports leagues for his forward thinking in marketing the UFC. He constantly uses Twitter to promote the UFC product without pushing it on followers. His tweets aren’t commercials like some other famous people on Twitter. I appreciate his pictures at the weigh-ins and/or backstage the most. He also uses #Hunt4UFC on  Twitter for scavenger hunts and ticket giveaways prior to UFC events. In addition, we’ve also written about viral videos the UFC has made in promoting its product.

UFC 123: Payout Perspective

November 21, 2010

Welcome to another edition of Payout Perspective! We’ll be taking a look at UFC 123: Jackson vs. Machida that was held at The Palace at Auburn Hills just outside Detroit, Michigan on Saturday, November 20th. In addition to the light heavyweight showdown between former champions Jackson and Machida, the event also featured the rubber match between BJ Penn and Matt Hughes.

Rampage survives late onslaught, judging system called into question

Rampage Jackson was the aggressor over the first two rounds and survived a late push from Machida to earn a split decision victory on Saturday night. The result of the fight has many questioning the validity of MMA’s current scoring system as Jackson won more rounds, but Machida did more damage in aggregate with his late flurry in the third round that almost finished Rampage both on strikes and via an armbar. It certainly makes sense to look at a different scoring system – e.g., the half-point system – but I’m not sure any significant progress will be made without a huge effort on part of the UFC to pass changes through the Unified Rules.

Jackson was clearly the most popular fighter on the night. It’s probably better for UFC business to have him win, as opposed to Machida whose style can, at times, leave fans wanting. Although, it’s difficult to say what’s next for Jackson, because the entire 205lbs division has seemingly been put on hold with the injury of Shogun and unwillingness of Rashad Evans to fight anyone else. The winner of either Jones vs. Bader or Griffin vs. Franklin would appear to be most likely, but those are fights that likely won’t take place until mid-Spring at the earliest.

Penn annihilates Hughes, set to face Fitch at 126

BJ Penn dominated Matt Hughes like no other and, in doing so, issued a clear statement to the UFC – he’s not done yet. This is obviously great news for the UFC from a business perspective, because BJ is one of the most popular fighters in the UFC and he’ll be used to bolster at least the next few fight cards in which he participates. Dana White mentioned at the post-fight press conference that Penn would fight Jon Fitch in February at UFC 127 in Sydney, Australia.

The UFC has put together strings of excellent fights over the past couple years – the most recent being March through August of 2010 – but it’s never put together a full year. However, that could all change given the UFC-WEC merger and what that has already meant for the start of the UFC’s 2011 campaign.

UFC 125: Edgar vs. Maynard and Aldo vs. Grispi
UFC 126: Silva vs. Belfort, Jones vs. Bader, and Torres vs.  Banuelos
UFC 127: Penn vs. Fitch and Bisping vs. Rivera
UFC 128: Shogun vs. Evans and Ortiz vs. Nogeuira

The UFC has broken its PPV total two years in a row (2008 and 2009). It will officially break the record again this year. Yet, the odds of the company breaking the record for a fourth consecutive year seem quite good.

UFC 123 a non-title fight model

The folding of the WEC into the UFC should limit the number of non-title UFC PPV events in the future, but UFC 123 is definitely a model for how to book a non-title event when its necessary. The UFC used four former title holders in Jackson, Machida, Penn, and Hughes to anchor this fight card and then supplemented the show with a host of intriguing match-ups. I doubt it will sell beyond 600k, but it likely provided enough incentive for most of the hardcore fan base to purchase the card and bring in a 400-500k buyrate.

In the absence of the title draw, the UFC must continue to leverage former titleholders that already possess material levels of equity in order to draw fans to the card. It cannot rely on would-be contenders to headline shows, because few people have heard of them – regardless of whether they may fight for a title some day. If those contenders need exposure then place them on the main card; not in a headlining position.

Sponsorship Watch

In October, Boost Mobile officially announced its partnership with the UFC. I thought UFC 123 would provide the brand with an excellent platform to introduce and activate the partnership given that Rampage Jackson, its primary fighter endorsement, was also headlining the card. I was wrong.

The brand continues to run with the same “Your Town, Our Fighter” promotion they opened with and it really hasn’t added any new activation to the fold other than some minimal social media engagement through Facebook and Twitter. I understand that Boost isn’t Sprint’s priority, but there are a host of cost-effective measures the company could employ to better activate around this partnership and essentially own the UFC’s mobile category.

I don’t know the exact details of the sponsorship deal or if there were any advertising/activation requirements, but this is yet another example of a brand coming to the UFC and missing an opportunity to claim value. Not only is the brand leaving money on the table, but it’s detrimental to the UFC as well. The purpose of sponsorship isn’t just to sell additional advertising inventory, but to leverage the partnership to better engage its fan base and add value to the consumer experience.

Yes, the UFC can only do so many things at once – expand to new markets, lobby for further legalization, improve regulation and drug testing, etc. – but the way it influences sponsorship activation directly effects its core marketing strategy. This isn’t a small matter.

Note: I’ve been slacking  on the Sponsorship Blue Book lately, but I promise a comprehensive update is coming prior to December 11th!

HDNet to Televise FEG’s “Dynamite!! 2010” NYE Event Live

November 20, 2010

HDNet Fights CEO Andrew Simon that the Japanese MMA blockbuster NYE event, “Dynamite!! 2010” will air live in the U.S. on HDNet.

MMAJunkie and HDNet report:

HDNet Fights CEO Andrew Simon confirmed the plans with MMAjunkie.com (www.mmajunkie.com)… The event takes place Dec. 31 at the Saitama Super Arena in Saitama, Japan.

Currently, officials have announced only one fight for the card: a featherweight title bout and grand-prix-finale rematch between champion Bibiano Fernandes and Hiroyuki Takaya. However, as MMAjunkie.com recently reported, the show could feature an MMA-rules bout between DREAM champ Gegard Mousasi and K-1 kickboxing legend Jerome Le Banner, and many other notables are rumored for the show.


Payout Perspective:

HDNet subscribers will once again be treated to another NYE combat extravaganza as the network will continue to televise the Japanese end-of-the-year combat festivities this year.

FEG’s rival promotion, Sengoku Raiden Championship who also has a U.S. TV deal with HDNet, is also expected to host their own NYE event, “Soul of Fight” they day before FEG’s Dynamite event, which is part of a end-of-the-year martial-arts festival which will also host fights ranging from kickboxing, MMA, grappling, and other martial arts and combat disciplines. Arrangements to air the MMA portion of the event in some form on HDNet is currently in discussion.

GSP in ESPN Commercial

November 20, 2010

This week ESPN debuted its first commercial with an MMA theme. The 15 second skit features UFC welterweight champion Georges St-Pierre and ESPN host John Anderson.

Payout Perspective:

ESPN is the undisputed “worldwide leader in sports” and this commercial will lend credibility to the sport of MMA. It’s certainly a step in the right direction for MMA’s pursuit of mainstream acceptance. Furthermore, when you combine the commercial with ESPN’s support of MMA Live and the recent hiring of former Sherdog and SI analyst, Josh Gross, it would appear the network is beginning to throw its weight behind the sport.

However, I wonder whether this is a case of too little, too late for ABC/ESPN. If ESPN, or any other network, is to compete in the MMA space, it will need to be aligned with the UFC and its content. Yet, Dana White commented to Broadcast & Cable a few weeks ago that ESPN may regret passing on the opportunity to become the new home of the UFC. He then indicated making progress on some sort of network television deal; something that may either complement or replace existing deals with Spike and Versus that expire in a year.

My own opinion is that the ESPN platform is superior to all other network options currently available. It provides a superb combination of local and national coverage which is supported by many other touchpoints including online, mobile, and radio. ESPN has the ear of the mainstream sports fan. I question the ability of any other potential network partner to match that reach and influence.

Ears to Joe: Lauzon fight banner pokes fun at himself

November 19, 2010

Fight banners are a way that fighters can earn extra money through their sponsors. Most fans rarely pay them any attention since the fighters stand in front of them as they are being introduced. However, Joe Lauzon’s fight banner seeks to be a little different.

Poking fun at Lauzon’s ears, the banner is a subtle way that you will remember Joe. He fights George Sotiropoulos at UFC 123 on Saturday night.

Joe Lauzon Banner

H/T Cagewriter via Joe Lauzon’s web site:

Payout Perspective:

This is a great way for Lauzon to stand out from other fighters. Its a good branding tactic. It is subtle, but takes advantage of his time in front of the cameras. The banner also says a lot of Lauzon’s personality – he’s self-deprecating and has a sense of humor. I don’t recall other banners that was this creative in putting the fighter in his own banner.

On another note, looking at Lauzon’s sponsors, he has quite the array of backers. From a card company to an exercise company to an online seafood company.

Pacquiao Payout: PPV numbers and other observations

November 19, 2010

According to early estimates, PPV buys for the Margarito/Pacquiao fight were estimated at 1.4 million viewers. This is double the amount for Pacquiao’s fight with Joshua Clottey in March. It also is the number for the Floyd Mayweather/Shane Mosley fight in June.

Lance Pugmire of the LA Times posted a tweet stating that the attendance figure of 41,734 was a disappointment. At the post-fight press conference, Bob Arum citedtough economic times as a factor for the low attendance. In comparison, the attendance for the Pacquiao/Joshua Clottey fight in March at Cowboys Stadium was 50,994.

Payout Perspective:

Preliminaries

Jones/Soto-Karas action. Admittedly, the establishment I went to watch the fight had multiple televisions so I was watching the Oregon-Cal game during most of the prelims. However, I did catch the Mike Jones/Jesus Soto-Karas fight. The fight was highlighted by a flurry of action in the 2ndround as Jones hit Soto-Karas with punches in bunches. However, Jones expended so much energy it allowed Soto-Karas to get back into the fight. In the end, Jones won a controversial decision.

Missing the Ghost. It would have been great if Kelly Pavlik was on the card. Pavlik pulled out due to injury. Although on the downside of his career, he is a known fighter and his presence would have complemented the card.

Main Event

There was some pre-fight drama as the hand wrap controversy came into play. But, it was the Margarito camp taking issue with Pacquiao’s hand wraps. Not to be outdone with the gamesmanship, Pacquiao’s camp believed that Margarito was drinking something with the banned substance Ephedra. It appeared to be coffee with Splenda. The broadcast did a good job of investigating the issue by sending Max Kellerman to the back. Although comical, Kellerman provided an up to the minute account of the issues going on in the locker room. While it distracted viewers from the Jones/Soto-Karas fight, it kept people apprised of what was going on in the back. It would be nice to see MMA broadcasts take a page from this from the perspective of providing backstage interviews and more shots of the preparation going on in the back.

Pacquiao/Margarito– A dominating show by Pacquiao. The fight could have been stopped multiple times and it looked like the referee was hoping for a flurry of punches to stop Margarito similar to the end of the Pacquiao/Cotto fight. In his past few fights, it seems that Pacquiao gets bored during the fight (see e.g., the curly shuffle or taking breaks during rounds by putting up his hands and absorbing shots).

Miscellaneous Observations

–  The marketing for the fight has been examined hereand here. Also, Tecate remained a constant presence at the fight.

–  If you watched HBO’s 24/7, you noticed that Affliction sponsored Antonio Margarito. Nike adorned Pacquiao and entourage with various t-shirts coming to a store near you. I would be interested to know if there was any difficulty for Margarito to find sponsors. Secondly, did Affliction have any concerns with sponsoring Margarito.

–  HBO 24/7 is one of the best shows in hyping fights. UFC’s version is a good runner-up. The 24/7 series will be hyping NHL’s annual New Year’s Day outdoor hockey game. Although not a big fan, I will be tuning in. 

–  Buboy Fernandez:  Pac-Man’s success has made this second a noticeable figure. On Saturday, he was adorned with more sponsor patches than anyone in the entourage. As long as Buboy gets a cut of what he wears, I am happy for him.

–          Nelly: His mini-set was met by boos where I was watching. Its good publicity for Nelly, but frustrating to all that were waiting for the main event. It is customary that the main event occurs immediately after the national anthems. When Nelly was announced by Buffer, it deflated the crowd.

–  Max Kellerman: Nothing against Larry Merchant, but I think Kellerman does an all around good job in analysis and interviewing (despite his run-in with Mayweather after the Marquez fight). He also was a good offset to Jim Lampley and Emmanuel Steward who tend to wander. I noticed he stuffed Lampley’s attempt to go with the consecutive “Bangs” a la the Clottey fight.

–  Post Fight Interview: I thought it was interesting that Kellerman asked and got an honest answer from Manny Pacquiao as to whether he took it easy on Margarito in the last round. You could see Kellerman taken aback that Pacquiao admitted to easing up. It was interesting to see how he hesitated in considering whether or not he asks a follow up question. While some may think this shows a lack of killer instinct, it also shows the compassion Pacquiao has for his fellow fighter.

Future Fights

There is much debate as to whether Floyd Mayweather and Manny Pacquiao will ever fight. This would be the only fight that makes sense and would draw huge PPV and attendance numbers. Mayweather (Floyd and Roger) legal troubles and failed negotiations are hurdles to this superfight.

Despite Shane Mosley’s pleas, it would be hard seeing him winning a fight with Pacquiao. Also, his recent fights aren’t cause to be excited about this matchup. Juan Manuel Marquez could be an option but I am not sure if that is the fight the Pacquiao camp wants since he lost to Mayweather.

Other fighters such as Timothy Bradley, Devon Alexander or Andre Berto are not marquee names that would excite the casual boxing fan.

Zuffa Takes the Piracy Fight to Google

November 19, 2010

In its active fight against piracy, Zuffa has taken a number of approaches to address the problem.  I addressed many of these approaches in an earlier article, “Zuffa’s Piracy Fight– Winning The Battle, But Can It Win The War?”  In that article, I noted many of Zuffa’s short-term successes but asked whether Zuffa is simply engaged in a frustrating game of “whac-a-mole” with no real probability of long-term success.

Today, there were a number of reports concerning a Digital Millennium Copyright notification that Zuffa sent to Google back in September.  The text of the takedown notice was provided courtesy of Google at a website, www.chillingeffects.org.  The takedown notice provided in relevant part as follows:

On behalf of Zuffa, LLC and/or its subsidiaries and affiliated companies, I am writing to notify you of the infringement of Zuffa, LLC’s intellectual property rights in the titles identified in this email in Google search results.  Demand is hereby made that Google take immediate action to stop such infringements.  The search results and links identified in this email are specific examples of Google search results linking to images, artwork, video files, video streams and websites that infringe upon Zuffa, LLC’s intellectual property rights.  Zuffa, LLC hereby demands that Google promptly remove and disable the links to all unauthorized copies of works whose copyrights are owned by Zuffa, LLC of which it is aware, including the infringing files identified in this email.

Payout Perspective:

The e-mail takedown notice concludes with a list of specific URLs that Zuffa alleges lead to works that infringe on its intellectual property.  Notably, the infringing URLs appear to be specific to the events, i.e. the links are not to the homepage of the allegedly infringing websites.

As S.C. Michaelson correctly notes in an article, “The UFC Wants You to Know Where to Find Illegal Streams,” the obvious downside of such a takedown notice setting forth the specific websites where alleged infringement is occurring is that a list like that could become public providing a roadmap to those seeking illegal streams. That is precisely what occurred today at the MMA specific websites that posted the e-mail.

If you check some of these links, admittedly I only checked a few, it appears, at first blush at least, that Zuffa was successful.  For example, I plugged one allegedly infringing site into Google and here was what came up:

In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.

However, it appears, at least for some of the links I tried, that the website search results still come up in Google albeit for different URLs, i.e. events.  Thus, Google did not shut down the website where the alleged piracy is occurring, but instead simply disabled the specific link referenced in the takedown notice.

Given that the websites are still active in some instances and the fact that the e-mail has now been made public with an apparent roadmap to allegedly infringing sites, you may be wondering if Zuffa made the right move here.

In making that determination, it is worth checking out the Google DMCA instructions.  Google requires very specific information, including “FOR WEB SEARCH, YOU MUST IDENTIFY EACH SEARCH RESULT THAT DIRECTLY LINKS TO A WEB PAGE THAT ALLEGEDLY CONTAINS INFRINGING MATERIAL. This requires you to provide (a) the search query that you used, and (b) the URL for each allegedly infringing search result.”  Accordingly, Zuffa had no choice but to provide the specific URLs at issue.

Moreover, and importantly, Google’s DMCA instructions provide as follows:

Please note that in addition to being forwarded to the person who provided the allegedly infringing content, a copy of this legal notice will be sent to a third-party which may publish and/or annotate it.  As such, your letter (with your personal information removed) will be forwarded to Chilling Effects (http://www.chillingeffects.org).  You can see an example of such a publication at http://www.chillingeffects.org/dmca512/notice.cgi?NoticeID=861.  A link to your published letter will be displayed in Google’s search results in place of the removed content.

Given this language, Zuffa knew, or should have known, that the list provided in its email to removals@google.com would end up on the Internet.

Whether Zuffa could have predicted that the list would end up on the radar of the MMA media websites is another question.

I will let you be the judge.

Fight Lawyer

Justin Klein is an attorney at Satterlee Stephens Burke & Burke LLP in New York City where he concentrates his practice in commercial litigation and represents clients in the fight industry.  He regularly addresses current legal issues that pertain to combat sports, including efforts to legalize MMA in New York, at his Fight Lawyer website.  He is a licensed boxing manager with the New York State Athletic Commission as well as the founder and Chairman of the Board of the New York Mixed Martial Arts Initiative, a non-profit organization that gives inner city youth the opportunity to experience the emotional and physical benefits of martial arts training.  Justin lives in New York City where he trains in jiu jitsu and boxing.

DISCLAIMER

The information in this post and on my site consists of my opinion only, i.e., it is not the opinion of my employer or anybody else. In addition, and because this is my opinion, it is not intended to be (and is not) legal advice or an advertisement for legal services. This post provides general information only. Although I encourage interested parties to contact me on the subjects discussed in the articles, the reader should not consider information on this site to be an invitation for an attorney-client relationship.  I disclaim all liability in respect to actions taken or not taken based on any contents of this post. Any e-mail sent to me will not create an attorney-client relationship, and you should not use this site or my site to send me e-mail containing confidential or sensitive information.

TUF 12 Episode 10: 1.8 million viewers

November 18, 2010

MMA Payout has learned that The Ultimate Fighter 12, Episode 10 scored a decent 1.3 hh rating with an average of 1.8 million viewers. Spike TV emailed the ratings information to MMA Payout today.

TUF earned a 1.80 with M18-49 and a 2.10 in M18-34. Good ratings for these demographics.

Qtr hours/ hh rating:
1.27  
1.15  
1.38  
1.42  

Payout Perspective:

Good numbers for this week’s episode which featured a cameo by Freddie Roach.  A nice touch to include him in an episode the week after the Pacquiao fight. Bruce LeeRoy versus Michael Johnson saw the largest audience with a 1.42 rating.

Based on the snippets for next week’s 2 hour show, the Nam Pham/Michael Johnson fight looks like a great fight (obviously, it could be edited to look exciting, but still…)Looking ahead, a Nam Pham/Michael Johnson v. Jonathan Brookins final would be a good match for the TUF Final.

« Previous PageNext Page »