A DISCUSSION OF LAW AND JOURNALISM

LeBron James Heroin For Sale

By Jennifer Williams

NBA champion; NBA Final MVP; three-time NBA MVP; NBA Rookie of the Year; eight-time NBA All-Star. This is not a list of my fake accomplishments on NBA 2K13. No, these are actually the successes of a very real player, ex-Cleveland Cavaliers, current Miami Heat player, LeBron James.

Oh, there’s one more description I could have added: official face of a heroin brand that’s all the rage in Philadelphia.

Earlier this month, 19-year old drug dealer Marlon Guess was busted with 140 packets of heroin, all of which he’d sold to an undercover police officer for $750. Each little bag of heroin was branded with “LeBron James” and had a silhouette of King James himself.

Mr. Guess didn’t make apprehending him easy. There was a car chase, an accident, and then a chase on foot. But he was caught, and after being charged with felony narcotics trafficking was held on $250,000 bail.

While our suspicion is that Mr. Guess is likely to have bigger legal fish to fry, we wondered if his choice of brand for his product could add to his woes. And so we looked into the extra heat this drug dealer might face, for intellectual property reasons.

The first issue is whether or not using Mr. James’ name and image (presumably without permission) infringes on the LeBron James trademark. A valid trademark is a word, symbol, or phrase used to identify and distinguish a product. The Lanham Act says that any person who, without consent from a registrant, uses that registered mark in commerce in a way that’s likely to cause consumer confusion is — well, in trouble.

To determine likelihood of confusion, several factors are considered. In a 2012 Court of Appeals case, for example, Coach, a luxury goods company, tried to prevent an educational company from using the “Coach” mark for educational materials. The court agreed with the Trademark Trial and Appeal Board when it determined that there was no likelihood of confusion due to the “vast difference in the parties’ respective goods, the channels of trade through which those goods are sold, and the vastly different commercial impressions made by the marks on consumers.”

It’s a near certainty that Mr. Guess’ customers know who Mr. James is and recognize his name and image on their purchase. But Mr. James is probably not selling a similar product and it seems unlikely that a customer buying LeBron James Heroin would confuse “Aunt Hazel” as legitimately associated with Mr. James.

There may be hope for the ex-Akron Hammer, though, in the form of a trademark dilution claim under federal law, which can only succeed if the mark in question is famous and easily identifiable.

Let’s see if Mr. James’ mark would pass muster. When he was considering whether to leave Cleveland as a free agent in 2010, many celebrities and politicians weighed in, including President Barack Obama. His decision was announced on a live ESPN show called, aptly enough, The Decision. An estimated 9.95 million people tuned-in to find out where he would “take his talents” (making this the third-most watched program on all of cable television for that year). Mr. James has been listed as one of the most influential basketball players of the past decade and Forbes reports that last year, the LeBron James jersey is number four on the list of top selling jerseys in the United States and number three internationally.

All things considered, the LeBron James mark is pretty much a hands-down-no-questions-asked example of a famous mark.

Once the mark were found to be famous, Mr. James would need to show dilution either by “blurring” (the power of his mark is weakened by Mr. Guess’ use) or “tarnishment” (Mr. Guess’ use casts the LeBron James mark in an unflattering light).

Mr. James’ best argument is that the branded drugs cast his mark in an unsavory light. In a 1999 case, NBA Properties sued Untertainment Records and Vibe Ventures about an advertisement for an album by rapper Cam’ron. (Interesting album: Track 1 is a song called “Fuck”; Track 15 is a little ditty called “Fuck You At”). The ad contained the NBA Logo and showed a silhouetted basketball player altered to be holding a gun next to the title of the album: “S.D.E. (SPORTS, DRUGS, & ENTERTAINMENT).”

The NBA alleged dilution by tarnishment because the advertisement portrayed the NBA logo in a context likely to evoke unflattering thoughts. The court agreed stating that any suggestion that the “NBA endorses violence, gunplay or drug use, or that they have chosen to associate themselves with those who do, will likely tarnish their reputation with their corporate customers and partners, as well as the public at large.”

Using Mr. James’ name and image to market heroin is no different. But we don’t think that Mr. James needs to sue.

Turns out brand named heroin is oftentimes short-lived. Because there is no trademark for illegal goods, copycats crop up and then the cool factor of the brand diminishes – and the brand name changes. Mr. James doesn’t have to sweat this one. He can stick to the hard stuff – playing major league basketball.

Comments

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One Response

  1. Leslie K. says:

    He could still sue, but why bother? His name has been used already and wouldn’t be again. As you say, the sellers will move on to another brand. So the NBA should sue — to protect its other players

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