There was unhappiness among some in the North Carolina wrestling scene over former WWE stars The Revival filing a trademark on the phrase "Free the Revolt" as part of their post-WWE branding efforts exploits as Caleb Konley (Mason Burnett) and Zane Riley (Matthew Riley) have been using the team name "The Revolt" for the last five years on the independent scene. A big part of the unhappiness originates from the fact that all four talents started out working in the same circles in the Carolinas.
A ten-page cease and desist letter sent by Andrew Gerber, an attorney representing Konley and Riley, dated 5/10, that was sent to the attorney representing the former Revival, Michael E. Dockins.
In arguing the team's position, the letter noted, “The Revolt are well-known in the independent professional wrestling circuit and are the current PWX World Tag Team Champions. Mr. Burnett and Mr. Riley sell a range of Revolt-branded merchandise including t-shirts, hats, and DVDs, as shown in Exhibit B. The Revolt has been their passion for years and they have literally put their blood and sweat into building The Revolt brand and connecting with their fans.”
Pointing out that the former WWE stars “have recently rebranded themselves as “The Revolt” and have begun using “The Revolt” and “Fear The Revolt” as trademarks in connection with professional wrestling entertainment and associated merchandise”, the letter argues that Cash Wheeler (the former Dash Wilder) declared under oath that, to the best of his knowledge and belief that, “no other persons... have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive.”
The letter argues that in fact, all four of them know each other and that Konley and Riley, upon learning of the trademark filing, “tried to reach out as friends but were rebuffed. Dax [Note from Mike: the former Scott Dawson] and Cash may enjoy playing heels, but this is not the ring. They cannot steal their former friends’ intellectual property without consequence. Their conduct is not only unlawful, it is truly shameless that they would willfully steal a name from those that worked so hard to build it up.”
The letter also claimed that under United States trademark law, that the “senior user” of a trademark “has the exclusive right to use the mark, regardless of whether the mark has been registered” and since Konley and Riley have been using the Revolt name since 2015, they “are the true and exclusive owners of rights in the Revolt name.” The letter requested a response by 5/18 and warned that Riley and Konley could pursue additional legal remedies. It also included proof of the team using the Revolt name, including photos of merchandise, advertising utilizing the team name for independent wrestling events and DVD releases.
After acquiring the cease and desist letter, PWInsider.com approached Dockins seeking comment on the matter. This afternoon, we received a copy of his response to the cease and desist, dated 5/11, which makes the position of the former Revival clear and also states that the team’s new name is NOT The Revolt, but rather "FTR", which will mean different things at different times.
Dockins’ letter states that “there are a number of fundamental errors and flaws in not only what your clients have represented to you, but also in the allegations you have levied in your letter. First and foremost while our respective clients were acquaintances with one your clients and aware of his participation in the wrestling business, they are able and willing to testify under oath that they were not aware of and, at worst, have not recollection of ever knowing of your clients’ claimed rights in a REVOLT-inclusive trademark.”
Stating that Konley’s social media accounts did not even reference the “Revolt” name until after it was clear that the “Free the Revolt” trademark had been applied for and that he and Riley began “social media tirades” about the issue.
The response also claimed that the former Revival’s team name will not be “Fear the Revolt" as Dockins stated, “Secondly, our clients do not intend and have never intended to call themselves FEAR THE REVOLT. They have at all times and in every way made it clear that their tag team name would be FTR, and that FTR can and would mean different things depending on their storyline and creative. They are not responsible for and cannot be held responsible for dirt sheets and others incorrectly attributing to them a name other than the name they have chosen, FTR. In fact, when your client reached out to my clients “as friends” to resolve this matter they were informed that the tag team name is, was, and will be FTR and not REVOLT or THE REVOLT or FEAR THE REVOLT.”
All that said, however, Dockins made clear that FTR “respectfully disagree with your presumptive conclusion that use of the mark FEAR THE REVOLT creates a likelihood of confusion with and infringement of the mark THE REVOLT. Before addressing a likelihood of confusion analysis, we must first clear up what your clients claim as their mark. It appears that their use has been inconsistent and different from location to location. Such inconsistent uses could result in a finding that your clients have an unprotectable phantom mark or no rights in any mark whatsoever. In your letter you refer to the mark as THE REVOLT. In the evidence provided the mark is shown as THE REVOLT or REVOLT! or ¡REVOLT! or REVOLT.”
Dockins also explained that tag teams with similar names have always existed in professional wrestling, using The Midnight Express, The Rock N’ Roll Express and The Midnight Express as an example. The letter also pointed out the different usages of the word “Warrior” in professional wrestling over the years, from Ultimate Warrior to The Road Warriors and beyond and that none of those led to a confusion in the marketplace.
Dockin’ letter states that whether the former Revival move forward with the trademark filing of “Fear the Revolt” or not, the team “can and will continue” to use the phrase in a “descriptive form”, noting, “The entire purpose behind use of the word “revolt” and “fear the revolt” was a commentary on our clients’ departure from the WWE; they “revolted” against the establishment. As you may know, descriptive fair use permits use of another’s trademark to describe the user’s products or services, rather than as a trademark to indicate the source of the products or services. This usually is appropriate where the trademark concerned has a descriptive meaning in addition to its secondary meaning as a trademark. In this instance, the word “revolt” clearly has a descriptive meaning and may be freely used by our clients or anyone else in the wrestling business.”
Dockins also argued that even if the Trademark Office or a court of law found that there could be a likelihood of confusion, Zane and Riley could “best’ hope for a concurrent use proceeding, where the trademark would, in blue collar terms, be carved out for usage in certain States/markets for one entity claiming original ownership and others for the second entity.
Noting that the entire situation will require everyone involved to “spend considerable amounts of time and money” and that the money will only escalate over time. Dockins stated that the former Revival had previously offered to personally finance Riley and Konley’s own trademark filing for The Revolt name andin the letter Dockins himself also offered “to waive my fees, inclusive of the cost of a consent agreement, if one is necessary, to prosecute the application to registration. That by itself has a value of a number of thousands of dollars.”
Dockins’ letter also claimed that FTR would have been willing to even work The Revolt in the ring had the latter “not attempted to disparage our clients via social media", writing that FTR "would have discussed and been willing to work an angle with them on an independent show or two of their choosing. However they did not proceed in a manner benefiting friends and such accommodations are now off the table. At best, only uncertain results and legal fees are ahead.”
Dockins also pointed out that despite the back and forth and potential legal action, the “Fear the Revolt” trademark remains, a pending, unpublished trademark that has not yet even been used by the former Revival or anyone else in association with the team. Dockin’s letter closed, “If your clients are willing to discuss a reasonable and mutually-beneficial resolution, and one that includes a public apology to our clients, we will take it back to them for consideration.”
We have no confirmation that Konley and Riley's representation have responded to Dockins..
A ten-page cease and desist letter sent by Andrew Gerber, an attorney representing Konley and Riley, dated 5/10, that was sent to the attorney representing the former Revival, Michael E. Dockins.
In arguing the team's position, the letter noted, “The Revolt are well-known in the independent professional wrestling circuit and are the current PWX World Tag Team Champions. Mr. Burnett and Mr. Riley sell a range of Revolt-branded merchandise including t-shirts, hats, and DVDs, as shown in Exhibit B. The Revolt has been their passion for years and they have literally put their blood and sweat into building The Revolt brand and connecting with their fans.”
Pointing out that the former WWE stars “have recently rebranded themselves as “The Revolt” and have begun using “The Revolt” and “Fear The Revolt” as trademarks in connection with professional wrestling entertainment and associated merchandise”, the letter argues that Cash Wheeler (the former Dash Wilder) declared under oath that, to the best of his knowledge and belief that, “no other persons... have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive.”
The letter argues that in fact, all four of them know each other and that Konley and Riley, upon learning of the trademark filing, “tried to reach out as friends but were rebuffed. Dax [Note from Mike: the former Scott Dawson] and Cash may enjoy playing heels, but this is not the ring. They cannot steal their former friends’ intellectual property without consequence. Their conduct is not only unlawful, it is truly shameless that they would willfully steal a name from those that worked so hard to build it up.”
The letter also claimed that under United States trademark law, that the “senior user” of a trademark “has the exclusive right to use the mark, regardless of whether the mark has been registered” and since Konley and Riley have been using the Revolt name since 2015, they “are the true and exclusive owners of rights in the Revolt name.” The letter requested a response by 5/18 and warned that Riley and Konley could pursue additional legal remedies. It also included proof of the team using the Revolt name, including photos of merchandise, advertising utilizing the team name for independent wrestling events and DVD releases.
After acquiring the cease and desist letter, PWInsider.com approached Dockins seeking comment on the matter. This afternoon, we received a copy of his response to the cease and desist, dated 5/11, which makes the position of the former Revival clear and also states that the team’s new name is NOT The Revolt, but rather "FTR", which will mean different things at different times.
Dockins’ letter states that “there are a number of fundamental errors and flaws in not only what your clients have represented to you, but also in the allegations you have levied in your letter. First and foremost while our respective clients were acquaintances with one your clients and aware of his participation in the wrestling business, they are able and willing to testify under oath that they were not aware of and, at worst, have not recollection of ever knowing of your clients’ claimed rights in a REVOLT-inclusive trademark.”
Stating that Konley’s social media accounts did not even reference the “Revolt” name until after it was clear that the “Free the Revolt” trademark had been applied for and that he and Riley began “social media tirades” about the issue.
The response also claimed that the former Revival’s team name will not be “Fear the Revolt" as Dockins stated, “Secondly, our clients do not intend and have never intended to call themselves FEAR THE REVOLT. They have at all times and in every way made it clear that their tag team name would be FTR, and that FTR can and would mean different things depending on their storyline and creative. They are not responsible for and cannot be held responsible for dirt sheets and others incorrectly attributing to them a name other than the name they have chosen, FTR. In fact, when your client reached out to my clients “as friends” to resolve this matter they were informed that the tag team name is, was, and will be FTR and not REVOLT or THE REVOLT or FEAR THE REVOLT.”
All that said, however, Dockins made clear that FTR “respectfully disagree with your presumptive conclusion that use of the mark FEAR THE REVOLT creates a likelihood of confusion with and infringement of the mark THE REVOLT. Before addressing a likelihood of confusion analysis, we must first clear up what your clients claim as their mark. It appears that their use has been inconsistent and different from location to location. Such inconsistent uses could result in a finding that your clients have an unprotectable phantom mark or no rights in any mark whatsoever. In your letter you refer to the mark as THE REVOLT. In the evidence provided the mark is shown as THE REVOLT or REVOLT! or ¡REVOLT! or REVOLT.”
Dockins also explained that tag teams with similar names have always existed in professional wrestling, using The Midnight Express, The Rock N’ Roll Express and The Midnight Express as an example. The letter also pointed out the different usages of the word “Warrior” in professional wrestling over the years, from Ultimate Warrior to The Road Warriors and beyond and that none of those led to a confusion in the marketplace.
Dockin’ letter states that whether the former Revival move forward with the trademark filing of “Fear the Revolt” or not, the team “can and will continue” to use the phrase in a “descriptive form”, noting, “The entire purpose behind use of the word “revolt” and “fear the revolt” was a commentary on our clients’ departure from the WWE; they “revolted” against the establishment. As you may know, descriptive fair use permits use of another’s trademark to describe the user’s products or services, rather than as a trademark to indicate the source of the products or services. This usually is appropriate where the trademark concerned has a descriptive meaning in addition to its secondary meaning as a trademark. In this instance, the word “revolt” clearly has a descriptive meaning and may be freely used by our clients or anyone else in the wrestling business.”
Dockins also argued that even if the Trademark Office or a court of law found that there could be a likelihood of confusion, Zane and Riley could “best’ hope for a concurrent use proceeding, where the trademark would, in blue collar terms, be carved out for usage in certain States/markets for one entity claiming original ownership and others for the second entity.
Noting that the entire situation will require everyone involved to “spend considerable amounts of time and money” and that the money will only escalate over time. Dockins stated that the former Revival had previously offered to personally finance Riley and Konley’s own trademark filing for The Revolt name andin the letter Dockins himself also offered “to waive my fees, inclusive of the cost of a consent agreement, if one is necessary, to prosecute the application to registration. That by itself has a value of a number of thousands of dollars.”
Dockins’ letter also claimed that FTR would have been willing to even work The Revolt in the ring had the latter “not attempted to disparage our clients via social media", writing that FTR "would have discussed and been willing to work an angle with them on an independent show or two of their choosing. However they did not proceed in a manner benefiting friends and such accommodations are now off the table. At best, only uncertain results and legal fees are ahead.”
Dockins also pointed out that despite the back and forth and potential legal action, the “Fear the Revolt” trademark remains, a pending, unpublished trademark that has not yet even been used by the former Revival or anyone else in association with the team. Dockin’s letter closed, “If your clients are willing to discuss a reasonable and mutually-beneficial resolution, and one that includes a public apology to our clients, we will take it back to them for consideration.”
We have no confirmation that Konley and Riley's representation have responded to Dockins..
No comments:
Post a Comment