The Case of Clipper Darrell

There’s an old adage, that all it takes to succeed in the world, is for one other person to believe in you.

Then, there’s the idea, that all it takes to succeed in the world, is for one person to tell you that you’ll never become anything.

The latter is what prompted Darrell Bailey, the man better known as “Clipper Darrell,” to pursue superfandom.  According to his own account on his website, http://www.clipperdarrell.com, Bailey was once fired from his job and told by his boss on his way out the door, “that he would never be anything in life without him.” 

What Bailey did thereafter was not conventional.  Rather than starting a business to rival his former employer’s, Bailey set to work on becoming something, namely, the biggest fan that the Los Angeles Clippers had ever seen.  He donned a custom-made blue and red suit to over 400 games.  He painted his house Clippers colors.  He spent $12,000.00 to paint his BMW sedan red, white and blue with Clippers logos. 

There is nothing inherently illegal in being a superfan.  Someone with the level of fanatic devotion of Bailey is something most other teams would love to have the support of.  In fact, according to his website, Mark Cuban offered to make Bailey a Dallas Mavericks employee if he would relocate to Dallas and support the team.

So, where does one begin to cross the link from superfandom into illegal activity?  It starts with trademark law.

Trademark protection initially existed at the state level.  It was created to prevent Merchant A from using the mark of Merchant B to deceive buyers into purchasing Merchant A’s goods.  In 1881, after nearly 100 years of federal attempts to protect company’s goodwill, Congress successfully enacted trademark legislation.  Today, federal trademark protection exists under the Lanham Act, a piece of legislation enacted in 1946.  In relevant part, the Lanham Act allows users of marks in commerce to register the marks as trademarks, and subsequently, protect the trademarks against infringement. 

Protecting the integrity of the trademark from infringement by non-trademark holders is important.  When a trademark holder allows non-trademark holders to use the trademark, it is said that the trademark is “diluted.”  When a trademark becomes diluted, the trademark holder runs the risk of losing trademark protection.  Given the goodwill and monetary rights associated with trademark protection, the risk of a trademark becoming diluted sends most trademark holders into swift action.

As noted above, there is not a legal cause of action against being a superfan.  However, when a superfan profits off of his superfandom by using trademarks associated with a team, the alarm goes off for the team’s trademark holders.

The Lanham Act provides that trademark holders can pursue civil lawsuits against those who, without consent of the trademark holder, “use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”  Amongst other things, this section of the Lanham Act protects against “false endorsements.”  Essentially, a false endorsement is one in which a non-trademark holder uses the trademark in a way to give the appearance that the holder of the trademark is endorsing the non-trademark holders activity.

It is likely, that the recent fallout between the Clippers and Clipper Darrell is strictly the result of the Clippers’ desire to prevent the dilution of the team’s trademarks.  LAC Basketball Club, Inc. (the Clippers) is the registered holder of the “Los Angeles Clippers” trademark.  If the Clippers allowed Clipper Darrell to pass himself off as an authorized user of the trademark in areas of commerce (i.e., paid appearances where Bailey appears as Clipper Darrell), then the trademark would arguably be diluted.  Thus, while many have called into question the “cold nature” of the Clippers’ recent actions against Clipper Darrell, it is clear that there is one simple basis for them:  trademark protection.

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