#wjlta

Litigation Funding in IP: Caveat Emptor

/ Washington Journal of Law, Technology & Arts / 1 Comment
Close up of poker chips by Markus Spiske is licensed under CC-CC0 1.0

By: Nicholas Lipperd

Gambling seems to be an American tradition, from prop bets on the Super Bowl to riding the stocks through bear and bull markets. The highest stake gambling is done by investment firms, some of whom are finding profitable bets to be had on civil court cases. The process of Third-Party Litigation Funding (“TPLF”) is simple enough on its face: a funder pays a non-recourse sum either to the client directly or to the law firm representing the client. In exchange, subject to the agreed upon terms, the funder receives a portion of any damages awarded. Thus, TPLF is no more than a third-party placing a bet on the client’s case, somewhat similar to the choice a law firm makes when taking a case on contingency. With $2.8 billion invested in the practice in 2021, TPLF seems to be a betting scheme that is paying off.

TPLF is expanding from business litigation into patent litigation. Since the creation of the Federal Circuit, damages in patent infringement cases have skyrocketed, increasing attention to patent cases. TPLF is no exception. The emergence of third-party funding in patent litigation could allow individuals to assert patent rights who previously could not have afforded it. Unlike agreements directly with law firms, third-party funding is not controlled by the American Bar Association’s (“ABA”) Rules of Professional Conduct for lawyers. While this creates some concern in any TPLF case, this lack of protection in patent cases is unique: the funder can obtain the rights of the patent(s) from their clients. 

As previously mentioned, a barrier many patent owners face when attempting to assert their rights is the cost of litigation. While patent litigation cases rarely proceed to a bench trial, these cases typically take three to five years to complete. Intrinsically linked to this timeline is the price tag. Infringement cases where over $25 million in damages is at risk may run a median of $4 million in litigation costs. For cases with less than $1 million at risk, the median litigation cost sits at just under $1 million. A simple look at the risk versus rewards tradeoffs in this case paints a discouraging picture for the plaintiff. Regardless of the expected damages, the cost of litigation is an undeniably large factor, and one that leads to many cases being settled within a year rather than being tried on their merits. 

When the client cannot afford to pay the price of litigation yet intends to assert the patent rights, TPLF creates an opportunity to pursue the case. Plaintiff-side litigation seems like a simple win-win for the client. Yet as with anything, the devil is in the details. A funder is naturally motivated to see a return on this investment, so a client looking at the deal must look past the surface. Not all funding is arranged on a non-recourse model, leaving clients no better off should cases become losers than if they had chosen a billable hour payment structure with the firm. TPLF often does not cover attorney’s fees awards, so clients may be on the hook for more than they realize. Litigation funding arrangements often come with “off-ramps” for the investor should the case take an unexpected turn or the funder stops believing in the merits of the case. This means the funder may be able stop funding the client at certain stages of litigation, leaving the client or the firm without funding for the remaining stages. 

TPLF has often been described as the “wild west” of funding cases. In part, this is due to the lack of regulations surrounding the practice. It is also due to the fact that third-party funders are not constrained by the ABA’s Rules of Professional Conduct like attorneys are. 

Attorneys may not abdicate their Rule 1.1 duty of competency, yet TPLF creates tension with this duty. A third-party funder has made an investment in a case. Like any diligent investor, the funder likely wants to track the case closely to ensure it continues to align with the funder’s financial interest. Should the funder attempt to exert control over the case to protect this interest, it is up to the lawyer to resist. This may leave the client in trouble; should the disagreement be large enough, the client could see their funding removed as the TPLF exercises a contractual “off ramp.”

Perhaps the most implicated ABA rule in TPLF structures is Rule 1.6, the Duty of Confidentiality. This rule, and the related Federal Rule of Evidence 502 regarding attorney-client privilege, create friction with TPLF arrangements. Funders want as much information as possible before and during the funding of a case, as they want to be able to gauge the strength of their future and current investments. While all disclosures must be clearly sanctioned by the client, when do these disclosures waive attorney-client privilege? The majority of lower courts hold that communications about the case with a TPLF fall under work-product privilege protection, a question the Supreme Court has not answered and one the Federal Circuit danced around. (See In re Nimitz Techs. LLC, (Fed. Cir. 2022) denying a writ of mandamus to protect the District Court from reviewing litigation funding materials in camera.)

While ABA Rule 1.5 prevents firms from charging unreasonable fees, including contingency rates, it does not prevent a TPLF from doing so. A funder can bargain with a client for whatever portion of the damages award they like, and they have much more bargaining power than the client does. This bargaining power may be used for more than simply leveraging a larger percentage contingency fee than a firm could charge.

While damages in patent cases are high enough to attract TPLF, it is more than money that may attract third-party funders to patent litigation. Often, the patent itself is just as valuable as the damages award. Rule 1.8(i) prevents attorneys from acquiring proprietary interest in the cause of action or subject matter of litigation. Again, this does not apply to third-party funders, who are free to include any and all patent rights in the contract to fund a client’s case. 

Patent owners may face a catch-22 style choice in this scenario. If they cannot afford to stake the cost of litigation and if a firm does not see value in taking it on contingency, owners may turn towards TPLF. Yet, if funders see more value in the patents than the potential litigation damages, patent owners must make a hard choice. Obtaining funding will give a patent owner a one-time shot at a large damages award. The owner, win or lose, will not be the owner of the patent any longer, and will lose any potential revenue stream it would produce. Yet if owners cannot assert their patent rights in court, what value do their patents hold? Patent owners have promoted the progress of science and useful arts in the United States, and in exchange they receive limited monopolies in the form of their patents. These monopolies are not so easily maintained and defended though. Patent owners must carefully consider their options when looking to assert their rights. Patent litigation is expensive and lengthy, and while having TPLF cover all litigation costs may seem like a sterling option, owners must dig deeper to fully understand the trade-offs. Could they lose funding support halfway through litigation? Would funding the case be worth giving up their patent rights? TPLF is still newly emerging in patent litigation cases, but for potential clients, the message is already clear: in deciding to take on a third-party funder, let the buyer beware.

Coogans All Around – Protecting Child Performers in the Digital Age

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Martin Lopez on Pexels.com

By: Matt Williamson

The Story of Jackie Coogan 

A Star is Born

Jackie Coogan may not be a household name today, but in 1924 he was on top of the world. 

A movie star with countless credits and awards to his name,  Coogan was raking in nearly $22,000 a week, had a massive contract with MGM, and was one of the most famous people in America. Oh, and to top it all off – he was only nine years old.

After being plucked from relative obscurity by Charlie Chaplin, Coogan became an almost instant sensation and Hollywood’s first child movie star. As his star rose his fame and riches seemed both immeasurable and unending. 

Sadly, they were far from either. As Coogan grew and matured, opportunities started to dry up and he soon needed to dip into the vast sums he had made in his youth. The only problem – legally, they weren’t his. 

The Fair Labor Standards Act and Child Labor Laws

When the Fair Labor Standards Act (FLSA) was passed in 1938, it represented a landmark shift in federal regulation of child labor. For the first time, the United States government set a minimum age requirement on the employment of children in any industry deemed to be hazardous or detrimental to a child’s health. There were, however, two notable exceptions; agricultural work and acting. These exceptions left child actors like Coogan with essentially no legal safeguards to constrain the agents and studios who employed them. Moreover, state laws throughout the country, including in California, held that children lacked the capacity to form contracts, and legally own property. Thus, child actors could not be directly paid, and instead, their parents were the recipients of their earnings.

A Dark Example

So what did this all mean for Coogan, as he struggled to gain control of the money he had made through years of film and television credits? All the earnings he had received before his 18th birthday were the legal property of his parents. When he eventually took his mother and stepfather to court in 1938 to demand the return of the money, he came away with little more than a grinding legal battle that depleted his already dwindling resources and an admission from his mother that his once immeasurable fortune had been squandered.

The story of Jackie Coogan’s exploitation was such a national scandal that California lawmakers were shocked into action. In 1939, the state legislature passed the California Child Actor Bill, which codified certain rights and protections for children acting in film and television, including the requirement that parents deposit 15 percent of their childrens’ earnings into blocked trust accounts that would be accessible on their child’s 18th birthday. Although these regulations did not initially spread to every U.S. state, several states eventually codified similar protections in what are commonly known as “Coogan Laws.”

Coogan Laws in the Digital Age

While Coogan Laws may provide some protections for young actors today, a growing number of voices, including in the Washington State Legislature, are raising concerns about the potential for a modern-day version of the star’s exploitation: the rise of family vlogging and Kidfluencers.

The Rise of Family Vlogs and the Kidfluencer

From its earliest days, Youtube has played host to a seemingly never-ending supply of “cute kid does something cute and/or funny” videos and posts. Viral sensations like the “Charlie bit my finger” video have received millions of views, and, since the platform began allowing creators to monetize their channels in 2008, generated thousands of dollars.

But it isn’t just cute kids doing funny things anymore. Today, there are hundreds of channels dedicated to Family Vlogging – a brand of content that aims to bring an audience into the daily life of a family via videos and social media posts. These channels range broadly in their presentation with some focusing on authentic representations of family life, while others feature toy reviews, parenting hacks, or prank battles. 

The result of all this content is that kids, sometimes at exceptionally young ages, are quickly becoming some of the biggest stars on Youtube. For instance, in 2021, Ryan Kalj and Nastya, two popular content creators aged 10 and 7 respectively, both garnered billions of viewing hours on their channels and made more than $27 million apiece while posting videos to the platform. It’s not just the views that are bringing in the bucks either, as sponsored content can provide creators hundreds of thousands of dollars in both monetary and in-kind compensation like toys and health and beauty products.  

Moreover, right now there are no Coogan Law equivalents for Kidfluencers (a helpful portmanteau for these stars). Therefore, parents are still the legal owners of all their children’s earnings and have free reign to do what they please with the profits. 

Regulatory Responses or a Lack Thereof

With all this money flowing, and essentially no guardrails in place to protect the interests of children,  concerns about the potential for exploitation and abuse in this space have become increasingly widespread. In a recent YouGov poll, nearly two-thirds of Americans said that underage influencers were exploited by a parent or guardian at least “somewhat” often. The same poll found a clear consensus over what Americans wanted done in response: child labor protections extended to Kidfluencers.

Despite this, only a few states have even considered proposals aimed at extending labor protections to Kidfluencers. One of these states though is Washington.

In 2022, House Bill 2032 was introduced to the Washington State House of Representatives. The brainchild of Seattle high school student Chris McCarty, the bill proposed a bold new structure for protecting kids featured in family video content. Among other provisions, it set out to mold the Coogan Law formula to fit the modern age by requiring that parents producing monetized videos featuring their minor children, deposit a percentage of the money they made from these videos into trust accounts for the children featured in the content. 

However, despite positive news coverage and bipartisan sponsorship,  the bill did not advance through committee in 2022, and after being reintroduced this session, it once again failed to move out of committee.

This repeated failure and the general lack of political action being explored on this seemingly popular issue beg the question: Why is establishing regulations of this type of content so difficult? 

One possible answer may come from an important stakeholder in this issue: tech companies. The companies that host this content regularly attempt to avoid regulation and would almost certainly prefer to avoid the cost and trouble associated with ensuring compliance with new regulations in this area. 

Another reason comes from a more fundamental source: the mechanics of these regulations themselves. Any attempt to regulate this kind of content will inevitably involve states in some way invading the relationship between parents and their children, raising a host of thorny legal questions and concerns over constitutionality, as well as possible political blowback.

Ultimately, when viewed in light of the complicated technical challenges and powerful opponents these regulatory efforts face, it is a small wonder that they remain few and far between. 

Conclusion

To conclude, many Kidfluencers seemingly serve as close parallels to Jackie Coogan. Today, they sit on top of the world, raking in millions of dollars and billions of views, and can rely on little in the way of legal protection. But maybe, just maybe, we can learn a little from Coogan’s legacy, and make sure their stories don’t parallel his too closely.

“Hey Chatbot, Who Owns your Words?”: A look into ChatGPT and Issues of Authorship

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Tara Winstead on Pexels.com

By: Zachary Finn

Unless you have lived under a rock, since last December, our world has been popularized by the infamous ChatGPT. Generative Pre-trained Transformer (“ChatGPT”) is an AI powered chatbot which uses adaptive human-like responses to answer questions, converse, write stories, and engage with input transmitted by its user. Chatbots are becoming increasingly popular in many industries and can be found on the web, social media platforms, messaging apps, and other digital services. The world of artificial intelligence sits on the precipice of innovation and exponential technological discovery. Because of this, the law has lagged to catch up and interpret critical issues that have emerged from chatbots like ChatGPT. One issue that has risen within the intersection of AI-Chatbot technology and law is that of copyright and intellectual property over a chatbot’s generated work. The only thing that may be predictable about the copyright of an AI’s work is that (sadly) ChatGPT likely does not own its labor. 

To first understand how ChatGPT figures into the realm of copyright and intellectual property, it is important to understand the foundations and algorithms that give chatbot machines’ life. A chatbot is an artificial intelligence program designed to simulate conversation with human users. OpenAI developed ChatGPT to converse with users, typically through text or voice-based interactions. Chatbots are used in a variety of ways, such as: user services, conversation, information gathering, and language learning. ChatGPT is programmed to understand user contributions and respond with appropriate and relevant information. These inputs are sent by human users, and a chatbot’s response is often based on machine learning algorithms or on a predefined script. Machine learning algorithms are methods by which an AI system functions, generally predicting output values from given input data. In lay terms, a system will learn from previous human inputs to generate a more accurate response. 

The ChatGPT process goes as followed:

1. A human individual inputs data, such as a question or statement: “What were George Washington’s teeth made of?”

2. The Chatbot reads the data and uses machine learning, algorithms, and its powerful processor to generate a response.

3. ChatGPT’s response is relayed back to the user in a discussion-like manner: “Contrary to popular belief, Washington’s dentures were not made of wood, but rather a combination of materials that were common for dentures at the time, including human and animal teeth, ivory, and metal springs. Some of Washington’s dentures also reportedly included teeth from his own slaves” (This response was generated by my personal inquiry with ChatGPT).

So, who ultimately owns content produced by ChatGPT and other AI platforms? Is it the human user? OpenAI or the system developers? Or, does artificial intelligence have its own property rights?

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. This is codified in The Copyright Act of 1976, which provides the framework for copyright law. Speaking on the element of authorship, anyone who creates an original fixed work, like taking a photograph, writing a blog, or even creating software, becomes the author and owner of that work. Corporations and other people besides a work’s creator can also be owners, through co-ownership or when a work is made for hire (which authorizes works created by an employee within the scope of employment to be owned by the employer). Ownership can also be contracted.

In a recent Ninth Circuit Court decision, the appellate court held that for a work to be protected by copyright, it must be the product of creative authorship by a human author. In the case of Naruto v Slater, where a monkey ran off with an individual’s camera and took a plethora of selfies, it was concluded that the monkey did not have protections over the selfies because copyright does not extend to animals or nonhumans. §313.2 of the Copyright Act states that the U.S. Copyright Office  will not register works produced by nature, animals, the divine, the supernatural, etc. In the case of AI, a court would likely apply this rule and similar as well as any precedent cases that have dealt with similar fact patterns with computer generated outputs.

Absent human authorship, a work is not entitled to copyright protection. Therefore, AI-created work, like the labor manufactured by ChatGPT will plausibly be considered works of public domain upon creation. If not this, it is likely they will be seen as a derivative work of the information in which the AI based its creation. A derivative work is “a work based on or derived from one or more already existing works”. This fashions a new issue as to whether the materials used by an AI are derived from algorithms created by companies like OpenAI, or by users who influence a bot’s generated response, like when someone investigates George Washington’s teeth. Luckily for OpenAI, the company acknowledges via its terms and agreements that it has ownership over content produced by the ChatGPT.

However, without a contract to waive authorship rights, the law has yet to address intellectual property rights of works produced by chatbots. One wonders when an issue like this will present itself to a court for systemization into law, and if when that time comes, will AI chatbots have the conversational skills and intellect to argue for ownership of their words?

Are rap lyrics protected as free speech or could they send you to prison?

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Mark Angelo Sampan on Pexels.com

By: Aminat Sanusi

Over the past couple of decades, rap music has become part of mainstream culture and cultivated a billion-dollar industry. That means that more eyes are on every move the artists make and sometimes those artists get into trouble with the law. However, in recent years prosecutors have tried to use the artists’ lyrics as evidence during their trials to prosecute them for crimes charged against them. There has been much outcry and concern about using artists’ lyrics against them in a court of law because of First Amendment rights and how it disproportionately affects Black, Indigenous, and people of color (BIPOC). The Supreme Court has yet to rule on whether rap lyrics are protected speech under the First Amendment, so prosecutors in many states continue to use them as damming evidence in criminal trials.

How has the history of the First Amendment intertwined with artistic expression?

In a 1992 Supreme Court decision, Dawson v. Delaware, the court held that it is unconstitutional to use protected speech as evidence when that speech is irrelevant to the case. This case set a heightened evidentiary standard when it came to different forms of protected speech. This heightened evidentiary standard is disproportionately applied when it comes to rap music even though country music also uses vulgar language and speaks of violent and graphic imagery. Rap and hip-hop music in criminal trials has been treated as inherently criminating. The prosecutors in these criminal cases sometimes use rap videos in addition to the lyrics to try and convince juries that those artists more than likely committed the crime since they portrayed gang-related activities in their videos.

The majority of artists in the rap and hip-hop music industries are members of the BIPOC community and when they are facing criminal charges the prosecutors often use their rap lyrics as evidence that they committed the crimes. Rap lyrics are known to have vulgar language, and mention drug and alcohol use, gang-related activities, and different types of criminal activity. However, musical lyrics are considered artistic expression and are protected under the First Amendment. The First Amendment to the Constitution grants a person the right to free speech, press, and freedom to exercise the religion of their choice. The argument against the use of rap lyrics to incriminate hip-hop and rap artists is the fact that lyrics are free speech which is constitutionally protected.

Should artists be fearful of expressing their experiences in their music because it could be used against them in a court of law?

 In 2022, Grammy-award-winning hip-hop artist Jeffery Lamar Williams, famously known as, “Young Thug”, was charged with conspiracy and street gang activity under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. Mr. Williams is an African American male who raps about his life experiences including lyrics covering gang activity, drug and alcohol use, and living in poverty. The main piece of evidence used in Mr. Williams’ case was his rap lyrics. Many well known artists and celebrities have condemned this practice. They believe that prosecutors should not use Mr. Williams’ lyrics as evidence against him because, in addition to his music being protected speech under the First Amendment,  the lyrics have no relevance to the crimes he’s being prosecuted for. The prosecutor in Mr. Williams’ case claimed that the lyrics are not protected speech because they had relevance to the crimes he was facing. Mr. Williams’ trial has just commenced but it is not clear yet whether the use of his rap lyrics will be admissible or limited in his case.

Another unfortunate case of rap lyrics used as evidence was former rapper McKinley “Mac” Phipps Jr., who was convicted of manslaughter in 2001 after prosecutors recited his rap lyrics in court. He served twenty-one years in prison out of a thirty-year sentence and was released in 2021. In Mac’s case, he was arrested when rap and hip-hop first began to play a huge role in mainstream culture but at the time people did not pay much attention to the use of the artist’s music against them in court proceedings in a prejudicial manner.

What does the future hold?

In the summer of 2022, the Governor of California, Gavin Newsom, passed the Decriminalizing Artistic Expression Act into law, which limits the use of rap lyrics as evidence in criminal trials. This Act does not completely exclude the use of the lyrics against artists in court proceedings, however, it does provide that the lyrics need to have relevant substantive value to prove the crimes of the case and not be unduly prejudicial. This Act encompasses visual art, performance art, poetry literature, film, and other media. If the prosecutors in California wish to use the rap lyrics as evidence, they would have to show that the lyrics were written around the time of the crime and that the lyrics have some specific similarity to the crime itself. This new law in California will have an immense effect on the way prosecutors prosecute many of the rap and hip-hop artists accused of criminal activity and how rap lyrics or music videos may be used as an admission of guilt.

Additionally, this past year the New York legislature introduced a bill similar to the law passed in California that would limit the admissibility of a defendant’s artistic expression against such a defendant in a criminal proceeding. The bill is called the Rap Music on Trial Bill. This bill would not completely ban the use of rap lyrics in a criminal proceeding but would ensure that the lyrics used were to show literal and not just figurative or fictional meaning. The Bill has been voted on and passed in the New York State Senate but still awaits a vote in the New York State Assembly. The United States House of Representatives has recently introduced legislation called the Restoring Artistic Protection (RAP) Act which would limit the admissibility of lyrics as evidence in criminal cases. Co-sponsors of this bill, such as Representative Jamaal Bowman from New York has stated he supports this bill because of how it will prevent talented artists from being imprisoned for expressing their experiences. Additionally, it would provide comfort to artists who are afraid of expressing their creativity because they do not want their art used against them in a criminal case. The RAP Act currently has ten co-sponsors and has yet to be taken out of committee and brought to the floor for a vote. Hopefully, with all of these various changes in legislation, in the future rappers and singers will not be charged with crimes simply because of their artistic expression in lyrics and videos.

Major Tuddy’s Major Trademark Issue

/ Washington Journal of Law, Technology & Arts / Leave a comment

By: Kelton McLeod

On January 1st, 2023, the Washington Commanders unveiled a new mascot, Major Tuddy, a tall humanoid hog, wearing a military-inspired helmet and a perpetual grin. The unveiling has gone over with a healthy mix of derision and confusion, just about as well as anything one would expect to come from the Dan Snyder-owned Commanders. While even casual football fans might understand that Major Tuddy is named after the slang term for a touchdown, some are confused why the Washington, D.C.-based football team would want a hog to be the new symbol of their organization, while others are filing a trademark lawsuit because of it. 

From the 1980s and into the 1990s, Washington had the best offensive line in all of professional football. These men, including the likes of Joe Jacoby and Mark May, were known as The Hogs. The Hogs were, and remain, an important piece of Washington’s history, helping the team win its only three Super Bowls. But despite bursting onto the scene through a sign emblazoned with “Let’s Get Hog Wild,” Major Tuddy has not had many fans, players, or former players very excited. 

Instead of being a triumph at the end of a lackluster season (the Commanders were eliminated from playoff contention the day Major Tuddy was revealed), Major Tuddy has proved to be yet another point of controversy for the Commanders Organization. In fact, some of the original Hogs, including the likes of Joe Jacoby and Mark May, are so unenthused with the new mascot that they issued a statement prior to Major Tuddy’s announcement distancing themselves from Dan Snyder (the Commanders current majority owner) and referencing potential legal action related to this new Hog. The members of the original Hogs (joined by John Riggins, Fred Dean, and Doc Walker) created O-Line Entertainment, LLC,  and in July of 2022, O-Line Entertainment filed trademark applications to the federal register for ‘Hogs’ and ‘Original Hogs,’ as the terms relate to professional football paraphernalia and merchandise. O-Line Entertainment sees Major Tuddy as a potential infringement on their mark, an outright attempt to capitalize and commercialize on the work of the Hogs of the 80s and 90s, and an attempt to confuse the fans. 

While the Commanders imply they have no intention to financially capitalize on Hogs as a mark, O-Line Entertainment has a real shot at being able to exclude the Commanders from even trying. The Lanham Act §43(a) creates a statutory cause of action for trademark infringement, where “any person who . . .uses in commerce any word, term, name, symbol, or device, . . . likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person . . . shall be liable in a civil action by any person who believes that he is or is likely to be damaged by such act.” Trademarks exist to help consumers identify the source of a good. So, if someone attempts to use another’s mark, or something substantially similar, to cause confusion as to the source or sponsorship of a good, that party is liable for trademark infringement. In this case, it is hard to refute the source of Major Tuddy’s swine heritage, as even his official team profile references the offensive line from the 80s and 90s. O-Line Entertainment would just need to prove that the likelihood of confusion exists between their products and those of the Commanders organization, not that actual confusion has occurred. Under current law, there is a prospect of O-line Entertainment doing so.

While O-Line Entertainment’s trademark registration has yet to be granted, and the Commanders organization could attempt to invalidate it, this likely would not be worth the problems it would cause. The Commanders are already in the midst of a Congressional investigation, and Dan Snyder’s time as owner might not be able to handle the bad press. While it is hard to expect Dan Snyder and the Commanders leadership team–a group known for trying and failing to hide behind the best parts of their team’s legacy–to handle themselves in a morally upstanding way, how they choose to handle the marketing and merchandising of their new mascot could mean another long and protracted trademark dispute where they lack the moral high ground.