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ANTHEM'S FINAL ATTEMPT TO HAVE JARRETT LAWSUIT DISMISSED FAILS, JUDGE WARNS ALL SIDES TO CONSIDER GOING BACK TO SETTLEMENT TALKS, JURY TO DECIDE WHETHER PRO WRESTLING IS SPORT VS. ENTERTAINMENT IN SCOPE OF TRIAL, LATEST ON JARRETT TRADEMARKS AND MORE

By Mike Johnson on 2020-06-05 11:53:00

As previously reported by PWInsider.com, the lawsuit brought on by Jeff Jarrett and his company Global Force Entertainment (aka Global Force Wrestling) against Anthem Wrestling Exhibitions, LLC, the parent company of Impact Wrestling will go to a jury trial on Tuesday 6/30 after an attempt at settling the lawsuit failed.

Anthem’s last attempt to gain victory via summary judgment against Jarrett’s side was shut down on 5/27 after Judge Wavery D. Crenshaw Jr. denied their final attempt to have Jarrett and GFE’s remaining claims thrown out of court.  

In a 13-page ruling filed on 5/27 that was acquired by PWInsider.com, Judge Crenshaw noted that for the second time in “less than a year” the United States District Court, Middle District of Tennessee (Nashville Division) was being called upon to address issues coming out of “the failed merger” between the two sides.  Crenshaw noted that the first time this happened, “the Court spent 21-pages denying motions to dismiss” with the exception of GFE’s copyright claims and Anthem Sports & Entertainment, which was named as a defendant but later dismissed from the proceedings.

Noting that the previous filings led to “an exhaustive briefing” from Anthem and was followed up by back and forth filings from each side, Crenshaw wrote that “the Court need not spend nearly the same amount of time resolving Anthem Wrestling’s pending Motion for Summary Judgment” as based on TN law, the court must only grant “summary judgment only where (1) the movant has shown “that there is no genuine dispute as to any material fact,” and (2) “the movant is entitled to judgment as a matter of law.”

Noting, “Anthem Wrestling has submitted 74 paragraphs of facts running 21-pages, to which GFE has added another 109 paragraphs covering 27- pages. Those statements of fact are not “concise” under Local Rules 56.01(b) and (c), although some dispensation must be allowed for the dozen claims Plaintiffs have chosen to assert. Regardless, they are hardly “undisputed material facts,” as each party characterizes them. Otherwise, there would be no need for the parties to spend paragraph after paragraph trying to demonstrate a dispute in their respective responses, and Anthem Wrestling would not have felt compelled to file a reply to GFE’s responses in contravention of this Court’s Local Rules. It is tempting to conclude that there are bound to be questions of material fact when 183 statements of supposedly undisputed facts are submitted in a two-plaintiff, one defendant case that raises no exotic claims, particularly when those statement are accompanied by hundreds of pages of exhibits. However, the Court does not rest on what could be a cynical conclusion. Instead, as this Court stated during the telephone conference on April 15, 2020, it read and considered all of the filings that had been made to date, and tentatively reached the conclusion that summary judgment would be inappropriate because the case would likely turn on the jury’s assessment of the credibility of Ed Nordholm, Anthem Wrestling’s President, and Jeffrey Jarrett, a longtime professional wrestler and the founder of GFE.”

So, Judge Crehshaw feels the case will come down to whether the jury will believe Jeff Jarrett or Ed Nordholm’s testimony of the events that led to the lawsuit, therefore he has declined to throw out the case.

Crenshaw also cited that the case is now 21 months old and there remains a question “as to the citizenship of the only remaining defendant”, Anthem Wrestling.  Anthem had stated previously that they were out of the scope of this court of law being based in Canada, thus the lawsuit should be dismissed.  Crenshaw took issue with that and denied the motion.

In explaining his ruling, Crenshaw noted that Anthem Wrestling “is a Delaware limited liability company with its principal place of business in Toronto, Canada,” stating that claim was entirely consistent with filings made with the Tennessee Secretary of State through 2/27/20.  However, in a declaration made last month, Ed Nordholm, as part of a reply made by Anthem Wrestling’s reply, stated that Anthem Wrestling has always had its principal place of business in the State of Tennessee, and that according to Nordhold’s declaration, “Anthem Wrestling’s only office is located in Tennessee,” and “during the time period relevant to this lawsuit, several of Anthem’s executives were located in Tennessee.”  Despite that, Crenshaw noted that “None of those executives, however, made it to the Court-ordered mediation on April 15, 2020, even as a stand-in for Nordholm who apparently was stuck in Toronto as a result of the Canadian travel advisory related to COVID-19.”  While nothing that Anthem has stated this was a result of a paralegal error, Crenshaw was not moved to dismiss the case based on the issue.

Another major argument made by Anthem is that the usage of the GFW Amped! Material by Impact Wrestling, which distributed the content via PPV and DVD, was done via an implied license given by Jeff Jarrett, as Jarrett was in charge of making the decisions regarding that content while employed by the company.

On this matter, Crenshaw wrote, “Ultimately, Anthem Wrestling’s jurisdictional argument hinges on this Court declining to exercise supplement jurisdiction under 28 U.S.C. § 1367 in the absence of a viable federal claim. It argues that “all of Plaintiff’s Lanham Act and other trademark related claims3 fail because Plaintiffs’[sic] gave Anthem Wrestling an implied license to use Plaintiffs’ marks because all such use was done under Jeff Jarrett’s watch as Chief Creative Officer of Anthem Wrestling.” “

Citing previous legal rulings to explain there “is no precise formula for determining whether an implied license exists.” Crensaw wrote that the key issue is “is intent, and the key question is whether the facts and the circumstances demonstrate that ‘the copyright owners intended that their copyrighted works be used in the manner in which they were eventually used.”  

Crenshaw stated that a jury could conclude that Anthem Wrestling had an implied license because, as Anthem Wrestling has argued:

*Jeff Jarrett was Anthem Wrestling’s Chief Creative Officer for which he received a salary when all of the allegedly infringing acts began.

*Jeff Jarrett was directly involved with adding the GFW mark to Impact Wrestling’s logo.

*Jeff Jarrett was responsible for Impact Wrestling’s creative content, including integrating GFW’s wrestlers and championship belts into Impact Wrestling.

*Jeff Jarrett was involved in choosing the color and text of the logo. 

*Jeff Jarrett’s idea was to divide the GFW Amped! content into four PPV events, three of which aired while Jarrett was employed as Anthem’s Chief Creative Officer.

At the same time, the jury could also find that the implied license hinged on Impact and GFW having a successful merger (which did not happen, obviously, as Jarrett was fired, destroying the merger) or that Anthem Wrestling “exceeded” the scope of their implied license.

Crenshaw wrote, in explaining the Court’s position, “This is perhaps best illustrated by what occurred when Nordholm suspended Jarrett and was considering his termination from employment. In response to a query from Nordholm about how Anthem Wrestling should fill its October and December pay-per view slots under those circumstances, Executive Vice President Scott D’Amore sent what is now a cringe-worthy email suggesting the “Amp’d show” be aired, notwithstanding that Jarrett might “sue if he has the balls” to do so. (Doc. No. 110 at 2-3). D’Amore also proposed alternatives if Anthem Wrestling did not “want a legal battle.” (Id. at 3). Arguably, there would be little concern about the possibility of a lawsuit if, in fact, the implied license was as clear as Anthem Wrestling claims”

Crenshaw also cited the Term Sheet for the Impact/GFW merger, which stated, “the rights to the 16-episodes of GFW Amped . . . “will remain with GFE and be included as a part of the merger.”

It was also noted, “Perhaps this is why, in an October 23, 2017 email terminating Jarrett and the proposed merger, Anthem Wrestling stated that it “remain[ed] open to a reasonable arrangement with respect to the GFW content that has been broadcast.” 

Crenshaw stated, “There would be no need for Anthem Wrestling to remain “open” to paying for the content if it had an implied license, or so a reasonable jury could conclude. The issue of whether an implied license existed also impacts the viability of Plaintiffs’ claim for unjust enrichment, which requires proof of “1) [a] benefit conferred upon the defendant by the plaintiff’; 2) ‘appreciation by the defendant of such benefit’; and 3) ‘acceptance of such benefit under such circumstances that it would be inequitable for him to retain the benefit without payment of the value thereof.” Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005). If Anthem Wrestling did not have an implied license, then it may have been unjustly enriched by the use of Global Force’s wrestling marks. This remains so even though Jarrett and his wife were paid annual salaries($250,000 and $52,000, respectively) because Global Force is the entity bringing the unjust enrichment claim.”

So again, Crenshaw feels it will be up to the jury to decide which side is correct in this matter.

On the argument that Anthem Wrestling is right to maintain their trademark on the name Jeff Jarrett, which is another point of contention in the lawsuit, Crenshaw points out, “Anthem Wrestling argues that Plaintiffs’ request for trademark cancellation fails because they cannot show that Anthem Wrestling has abandoned the JEFF JARRETT (“JJ”) mark. After all, Anthem Wrestling registered the mark and it is therefore entitled to a presumption that the mark is valid, enforceable and incontestable under 15 U.S.C. § 1065.”

Crenshaw, however, pointed out that a trademark can be abandoned if either of the following occurs: 

*When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.

*When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark.   A claim for abandonment must be supported by “substantial evidence.” 

Noting that Ed Nordholm has declared four different times, in support of Anthem Wrestling’s motion that the trademark for Jeff Jarrett has been in “continuous use” and that Anthem has no contention of abandoning it, Crenshaw responded, “This may in fact be true, but under the statute use or intent to use a mark must be “bona fide” and “not made merely to reserve a right in a mark." " 

Crenshaw followed up, “Nordholm’s declaration is obviously self-serving (elsewise why file it?), and it will be for the jury to determine his credibility. This is particularly necessary here because Plaintiffs contend the JJ mark has long been used by World Wrestling Entertainment, and Jarrett has used the JJ mark since his termination by Anthem Wrestling, without objection.  At a minimum, this calls into question whether Anthem Wrestling truly intends to use and protect the mark”

Crenshaw also warned that if Jarrett and GWE can prove the trademark was abandoned before a jury, “Anthem Wrestling will no longer own valid and enforceable rights in the JJ mark, meaning that the consent Jarrett signed for Anthem Wrestling’s predecessor to register and use the mark in 2006 would be largely irrelevant.” 

In circling the issue regarding the GFW Amped! Ownership, Crenshaw stated, “Plaintiffs’ claims for negligence and conversion/trover differ from the others because they relate to the possession and destruction of the only set of masters of the sixteen one-hour episodes of GFW Amped. Anthem Wrestling argues both claims fail because it was required to pay KSTV (Plaintiffs’ creditor) $40,000 to obtain the masters, and it would not have returned Plaintiffs’ tapes absent repayment of that money. As a consequence, Plaintiffs cannot show (1) “a right to immediate possession of the item converted at the time of the alleged conversion,” for purposes of their conversion/trover claim; or (2) a duty that required Anthem Wrestling to maintain the master on its servers for purposes of their negligence claim.”

Crenshaw, however, noted that Anthem Wrestling has provided no agreement between the two sides that allowed Anthem “to destroy the tapes or hold them hostage. Indeed, under the Term Sheet, Plaintiffs owned the masters, and a jury could conclude that once Jarrett was terminated and the merger was dead, GFE was entitled to the return of the masters. It could also conclude that the $40,000 paid to KSTV (assuming GFE owed that sum) was for Anthem Wrestling’s benefit because it would not have to produce its own wrestling content at a significant cost.”

Crenshaw also noted that whether the notion that professional wrestling is sport or entertainment for audiences has become the crux of one of Anthem’s claims for dismissal.  One of the claims made against Anthem Wrestling by Jarrett and GFE is that the GFW Amped! Material being used violated The Tennessee Personal Rights Protection Act.  Anthem has argued against this because sports broadcasts are exempt under Tennesee law.

Stating this “may be the most interesting genuine issue of material fact”, Crenshaw reviewed a number of previous legal cases that led to some sports stating professional wrestling falls under sport while others have decided it falls under entertainment.

As to where professional wrestling falls for this case, Crenshaw ruled:

“For its part, the Court has no hesitation in concluding that Greco-Roman wrestling – as reintroduced in Athens, Greece at the first modern Olympics in 1896, and as practiced by high school and college athletes in gymnasiums and auditoriums across the country – is a “sport.” Professional wrestling is different, of that there can be little doubt. Some of its mystery over the years has been due to professional wrestling’s penchant for “kayfabe”: In the world of wrestling, the portrayal of staged events as real – the suspension of disbelief that is central to the proceedings – is known as kayfabe. For decades, maintaining kayfabe was de rigueur: “babyfaces” (or “faces”) [good guys] and heels [villians] didn’t ride together or associate in public, and reporters got slapped for suggesting that wrestling was fake. The line between kayfabe and reality began to blur during pro wrestling’s popularity boom during the late ’90s, and these days – thanks to the omnipresence of social media, the sunshine of the internet, and the WWE’s forays into reality TV – kayfabe is effectively dead.   While “kayfabe” may now be dead, the staged performances and elaborate personas are not. In fact Plaintiffs proclaim that “professional wrestling involves a script, a predetermined outcome, and ‘out-of-arena’ content that involves storytelling and drama” that is “akin to live action theatre where the audiences does not know the outcome of the event, but the actors and actresses do.” Whether that is the case, or whether professional wrestlers are “athletes engaging in highly dangerous feats of athletic display” as Anthem Wrestling contends for the jury to decide.”

So, the jury will decide, at least for the scope of the lawsuit, whether professional wrestling is sport or entertainment.

The court noted that in denying summary judgment to Anthem, “the Court has fully considered all of the arguments raised and, therefore, Anthem Wrestling need not waste any time or effort contemplating a motion to reconsider. In preparing for the trial that begins on June 30, 2020.”

Crenshaw did also offer the following advice to everyone involved:

“Plaintiffs should rethink whether a dozen causes of action are necessary, lest the jury be overwhelmed (or underwhelmed) by the evidence presented. Better yet, as a part of trial preparations, the parties should reconsider their respective positions on settlement because the summary judgment record suggests to the Court that either party could be pinned to a count of three.”

Currently, the two sides are preparing questions for the potential jury.

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