The stylized No. 3 symbolizing the legacy of Dale Earnhardt has been reproduced on jackets, on stickers with an angel’s halo, on the walls of local restaurants, and on countless other products and memorials to the late racing legend. RCR Enterprises Inc., which owns the trademark rights to the stylized No. 3, says that one of those memorials went too far. RCR, of Welcome, is owned by Richard Childress. RCR filed a federal lawsuit this week against ESPN Inc., the all-sports cable-television network that recently produced a film about Earnhardt’s life. The film and its related products use a stylized No. 3 similar to the trademark owned by RCR, according to the lawsuit. RCR is owned by Richard Childress.
“(ESPN’s) use of a colorable imitation of the Stylized 3 Mark in connection with a motion picture, DVDs and books is a purposeful attempt to draw a connection between those products and RCR’s Stylized 3 Mark,” the lawsuit argues. “Defendant has used and is using a colorable imitation of the Stylized 3 Mark in commerce to advertise and promote itself and its products and services,” the lawsuit continues. “Defendant has offered and is offering, in commerce, products and services for commercial sale or for commercial profit under a colorable imitation of the Stylized 3 Mark.” Josh Krulewitz, a spokesman for ESPN at its headquarters in Bristol, Conn., said that the company did nothing illegal. “We did not make use of the plaintiff’s trademark, and our use of the No. 3 was entirely legal,” he said. In the lawsuit, RCR charges that ESPN is violating its trademark, is competing unfairly under federal law and is diluting the symbol used by Earnhardt when he was driving for RCR for 20 years. “The Stylized 3 Mark is distinctive and has become famous through extensive advertising, promotional expenditures, careful control and over 20 years of continuous use and commercial exposure,” the lawsuit says. “Defendant’s use of a colorable imitation of the Stylized 3 Mark has resulted in and will continue to result in a lessening of the capacity of the Stylized 3 Mark to identify and distinguish authorized products and services.”
RCR is asking the court to order ESPN to stop using any stylized No. 3 that could resemble its own trademark, and to recall and destroy any products that include such a symbol. Company officials are also asking for damages, attorneys’ fees and “three times all gains, profits and advantages derived by them from (ESPN’s) infringement, dilution, unfair competition or unfair trade practices.” They also want interest. The two symbols have some similarities and some differences. The No. 3 used by Earnhardt was a block number italicized to the left. The No. 3 used by ESPN in its marketing has rounder edges, and it leans to the right.(Winston Salem Journal)(3-19-2005)
