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While March is a month of renewal and hope for Major League Baseball players and their fans, David Ortiz is finding some of his spring training in a “rain delay” thanks to a legal dispute with singer Jay-Z. Both men have opened nightclubs with similar names. Unable to reach a settlement rumored last April, the two are now in court.
For Jay-Z , The 40/40 Club is the hip-hop mogul’s signature “sports bar a lounge with a club atmosphere” with locations in Manhattan, Las Vegas and Atlantic City. Of course, if you think like Jay-Z’s lawyers, you didn’t ever consider his chain of nightclubs. Rather you found yourself misled, spending the evening in the Dominican Republic at the Ortiz-owned Forty-Forty club in Santo Domingo. Both men were inspired by the feat of hitting 40 home runs and stealing 40 bases, a rare achievement reached 4 times, once each by Jose Canseco, Barry Bonds, Alex Rodriguez and Alfonso Soriano.
Legally, there are two issues here: the names of the clubs and the similarity of the domain names. Jay-Z (Sean Carter) owns the4040club.com while Ortiz owns www.fortyforty.net. This is ultimately a trademark issue. Unlike a patent for an invention or a copyright for a song or book, a trademark gains its strength from the mental connection between the mark and a relevant sample of the public. Given that Ortiz operates a club outside the United States, Jay-Z could have a difficult time proving that the Sox slugger has created confusion. If, say, there is evidence of Ortiz advertising heavily in America and promoting his club as a vacation destination to hit up when traveling, there might be enough for Jay-Z to challenge. A court would look at how similar the names are and how likely people are to be confused.
Domain names are another topic entirely, governed by international law. Again, however, it’s all about confusion. The Uniform Domain Name Dispute Resolution Policy is used to settle these disagreements. In short, Jay-Z would have to show that the domain names are confusingly similar, that Ortiz didn’t have a right to the name, and that Ortiz was using the name in bad faith. Usually these cases are about one company pretending to be another or a person registering a domain name before a famous company and then trying to extort money out of them.
Hopefully the two of them can work this out without a long court battle. The last thing Red Sox Nation needs is a distracted David Ortiz at the start of the season.