Court Battle With Apparel Firm Threatens Nats Merchandise

By Thomas Heath
Washington Post Staff Writer
Wednesday, February 22, 2006

The Nationals are on the verge of starting their second season in Washington, and they still don't have an owner. The scheduled spring 2008 opening of a new stadium is fading fast as Major League Baseball and District leaders fight over who will pay for cost overruns. And now the team's right to sell merchandise with the Washington Nationals name on it is under threat.

Baseball is in the midst of a federal court battle with a Cincinnati-based apparel start-up known as Bygone Sports over who owns the apparel merchandising rights to the Washington Nationals name. In a setback for MLB, which owns the team, the U.S. Patent and Trademark Office last week granted Bygone's request to register the name.

The case is scheduled to begin at U.S. District Court in Manhattan on April 3 -- the day the Nationals are to open their second season with a game in New York against the Mets. A federal judge could rule before then, a development MLB is hoping for so that it will avoid the prospect of having to pay Bygone for the rights to the team's name.

The yearlong legal battle could have significant financial implications for the Nationals, whose merchandise was one of the league's top sellers during the team's debut season in Washington last year. If the court rules against Baseball, the Nationals would lose the right to sell apparel with the team's name on it -- although it would still be allowed to use the name on its uniforms.

MLB has said it will change the name of the team if it loses in court. And even if Baseball prevails, a new owner could change the name of the team.

The case is riding on whether Baseball can prove that it has held and exercised the rights to the name Washington Nationals since 1956, when Washington's major league franchise at the time changed its name from the Nationals to the Senators. Baseball said it has maintained its rights to the name through its licensing of that name on baseball cards and on apparel.

Bygone, which has no apparel line other than the Nationals, claims that MLB had no rights to the Washington Nationals trademark prior to Nov. 22, 2004, when Baseball first announced the name of the team after moving the franchise from Montreal to Washington.

"Bygone contends there was an abandonment of the mark and there was no intent to use the [Washington Nationals] mark until 2004," said Roger Kaplan, Bygone's attorney, in a telephone interview yesterday.

Kaplan said that although the Nationals apparel line is the firm's first foray into the sports apparel business, "they are planning on bringing out other lines."

Baseball contends it reached a deal with Bygone before it officially announced the name of the team, which involved paying the company $130,000, plus $10,000 in credits for purchases on the league's official Web site and four seats to last year's Nationals home opener. But the deal collapsed before the season began.

Baseball claims in court papers and in interviews that Bygone reneged on the deal and is trying to make a profit by earning the trademark rights to team names and selling them back to MLB.

Bygone had originally asked for $250,000 in cash, four tickets to World Series and all-star games for the next 20 years, bats, balls and jerseys signed by the Nationals and the right to have two individuals sit in the dugout with the team during one game. After the deal collapsed, the league sued Bygone in federal court.

"Bygone is nothing more than the typical squatter who tries to take advantage of someone else's reputation," said Ethan Orlinsky, a lawyer for MLB Properties, the league's licensing arm. "They filed for an historic name long associated with Major League Baseball in Washington at the very time it was public knowledge the [then-Montreal] Expos were relocating and D.C. was among the leading contenders. To make matters worse, when MLB reached an agreement to eliminate them as a continuing nuisance, they failed to live up to it because they thought they hit the proverbial jackpot when the name was chosen."

Nationals fans yesterday said they were exasperated. "This is getting really old," said season ticket holder Andrew Lang, 44, of Potomac. "There's the ownership issue. The stadium issue. Whether or not they are going to be there next year. And now, after I bought jerseys and hats for my five kids, they might have a new name."

Jay Sullivan, 37, a software engineer from Burke, and a Nationals fan, said he doesn't fault the Nationals.

"There's lots of things you can blame the Nationals for, but this isn't one of them," Sullivan said. "This sounds like a pretty frivolous claim."

Baseball predicted it will win the dispute. "The Washington Nationals are the Washington Nationals and will be for a long time to come," said Nationals President Tony Tavares. Then he added, chuckling, " as long as we get a new stadium."

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