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March 2013 - The Curse of the Carbonic Reserves

by Justice William W. Bedsworth

If you’re not a baseball fan, you probably think the Colorado Rockies are a place—the state designation appended to distinguish them from the Canadian Rockies or the inexplicably unsung Montana Rockies.(1) If that is your mindset, more power to you. You’ve avoided one of life’s great addictions, a time sink down the drain of which I have poured more of my biblically allotted three-score-and-ten than I care to recount.
I am a fanatic baseball fan. If I’d had a decent high school guidance counselor, I’d be doing play-by-play for the Albuquerque Isotopes today. Until arthritis took my knees away, my goal in life was to die at the age of 86, trying to go from first to third on a single.
My mom is responsible for this derangement. She got me hooked on baseball. At her funeral, two different friends commented about remembering her playing catch with me in the front yard. Women playing baseball were as alien to fifties life as horses playing clarinet. But Mom loved the game and she loved me. Ergo . . . .
Dad was not interested. Little League, American Legion, high school, college—I played ‘em all and he never saw a game. He was not only uninterested in sports, he was antagonistic. He used to say, “I hate sports the way people who love sports hate common sense.”
He seemed to think it was enough he bought the gloves and the bats and the cleats and whatever, applying money that was in very short supply to something he did not approve of. And he was right. He didn’t have another level of support in him. He gave me the highest gear he had.
So Mom is to blame for the fact I love baseball with a passion most people reserve for sex, objects, and money. And it’s her fault that you’ve read this far only to find out the rest of this column is not about the Front Range or the San Juans, but the other Colorado Rockies: a team in the National League of Professional Baseball Clubs.(2)
The Rockies have to be the only organization in baseball whose lawyers get more work than their bullpen.
It started in 1991. To appreciate that, you need to understand the Rockies were created—much as Michelangelo depicted creation as an old man reaching out his finger—in 1991, when Commissioner of Baseball Fay Vincent reached out his finger and touched a couple of businessmen from Florida and Denver and created the Florida Marlins and the Colorado Rockies. They did not play a game until 1993.
So when I tell you their legal eagles were in the arena battling in 1991, you know we’re talking about a precocious franchise.
The Rockies chose purple and black for their colors. They chose an interlocking CR as their cap logo and jersey decoration. Folks in Denver began buying caps and jerseys. Folks from as far away as Nebraska and the Dakotas identified with the team,(3) and Rockies gear was selling faster than snow-blowers and ski poles.
Until the Rockies got a very nice letter from the legal department of a San Antonio dry ice company called Carbonic Reserves. Seems Carbonic Reserves had a logo. They didn’t have team jerseys and hats, but they had been using an interlocked CR on their stationery and their trucks and their  . . . I don’t know, their dry ice buckets, I guess . . . for many years. They had trademarked it.
Oops.   
So you’ve been the lawyer for the Colorado Rockies for about an hour-and-a-half when the phone rings and they tell you the millions of dollars of team gear that’s being sold infringes on someone else’s trademark and you need to take care of it. Preferably before lunch.   
This is not an auspicious start. Baseball players cost more than jumbo jets and break down more than Fiats. If you’re gonna have to stock a baseball team with the requisite number of multimillionaires to begin competition, you don’t have a lot of disposable cash to throw around on legal fees.
One wag suggested the team settle by agreeing to refer to its benchwarmers as “the carbonic reserves.”
But the Texans were not litigious.(4) I don’t have access to the exact terms of the settlement, but it was considerably cheaper than a minor-league second baseman, did not require designating players “carbonic” anything, and left the Rockies enough money for bats, balls, cleats, and all the other stuff my dad hated buying.
But twenty seasons down the road, the Rockies have run into more Intellectual Property trouble. The Carbonic Reserves case may have just been the opening salvo of a hitherto unknown curse.
Seems the team wanted to use Rockies.com for its website. Makes sense. We sports fans are easily confused. Having to type something as complicated as ColoradoRockies.com might be too much for us. Especially since it would require us to be able to spell Colorado, something that probably requires even a few Rockies players to look at the scoreboard.
But someone—or something—else already had Rockies.com. Canada.
More specifically, the Canadian Tourism Authority.
For the Canadian Rockies. The mountains.
So the phone rang in the legal department bullpen. Again. And the Rockies’ lawyers went to work.
They must be great negotiators. They got the website from the Canadians for only 1.2 million dollars.
One point two million. Dollars. American. To change from ColoradoRockies.com to just plain Rockies.com.
That may not sound like a bargain to you. GoDaddy.com charges a dollar a month, which means the Rockies could have purchased one of their domain names and been paid up until the year 102,013 for the same money.(5)
Or, for 1.2 million dollars, you could keep the old website and pay for an education campaign that would teach even the densest of us fans to spell Colorado. After all, most of us can already spell “color”; the ad campaign practically writes itself.
So what makes this such a great deal for the “Rox”?(6) Why am I so impressed with their legal department’s negotiating skills? What makes this a settlement comparable to The Great Carbonic Reserves Swindle of ’91?
They got Major League Baseball to pay for it.
That’s right. Major League Baseball is an entity.(7) If you saw The Exorcist or any of the Final Destination movies you know what I’m talking about.(8)
And somehow the Rockies were able to convince them that getting a simple website for Colorado baseball fans was their responsibility. I was not privy to these negotiations, but I have to assume they involved signing over at least a couple of souls.
Seems there was precedent for this act of corporate magnanimity. MLB had bought Angels.com in 2010 for our local guys.(9) Brace yourself, here comes the MCLE part of today’s column. In 2010, MLB spent $200K for Angels.com. In doing so, they set a precedent the Rockies’ legal department doubtless paraded back and forth in front of them in full equitable regalia. And MLB coughed up the 1.2 mil.
So learn from the Colorado Rockies and MLB: Before you enter into a settlement, consider how it will affect your business in the future. There are still four baseball teams whose natural websites belong to someone else.10 And at the rate website costs are skyrocketing, MLB could end up having to give away the store for Rays.com or Rangers.com.11
Even my mom wouldn’t spend that much. Although, in 1962, she did spend $15 we didn’t have on the most beautiful Rawlings glove I’d ever seen . . . . God rest her soul.

BEDS NOTES
(1) Glacier National Park is in the Montana Rockies, and if you’re a fan of glaciers, grizzly bears, or gravedigger’s ass cold, it’s a beauty.
(2) Sometimes called the “Senior Circuit” because it is 25 years older than the American League, which wasn’t founded until 1901. This is the kind of thing you’ve been spared if you think the Rockies are a mountain range. Again, congratulations.
(3) So help me, they sold season tickets to people in North Dakota. That’s 81 games a year, played 800 miles away. Apparently Mom had relatives in North Dakota she didn’t tell me about.
(4) There’s a sentence you don’t get to write often.
(5) And I dare say GoDaddy.com would have given them a nice discount for paying 100,000 years in advance.
(6) Apparently Denver headline writers don’t even want to struggle through “Rockies.” They typically shorten the team name and never attempt “Colorado.”
(7) Or, as the Supreme Court would put it, “a person.” I like to think of it as “Uncle Jack,” since I don’t know any “persons” named Major League.
(8) And if you saw any of the Final Destination movies, you are in no position to look down your nose at my baseball habit.
(9) I don’t even want to think about who owned Angels.com. I’m just gonna assume it was a “higher authority” than the Canadian Tourism Board.
(10) Twins.com belongs to a pair of brothers, Durland and Darvin Miller (honest; I am not making this up; it actually belongs to twins), who are doubtless licking their chops and pricing Bentleys right now.
(11) But see, Darren Heitner, Did MLB Overpay In Its Purchase Of Rockies.com?, Forbes Magazine (Jan. 9, 2013), http://www.forbes.com/sites/darrenheitner/2013/01/09/did-mlb-overpay-by-spending-1-2-million-for-rockies-com/.


William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.

 
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