In February the Baltimore Ravens were able to hold off the San Francisco 49ers to pull out a nail-biting victory in Super Bowl XLVIIthe team's second championship in its 17-season history. But after more than a decade and a half of litigation, the team still hasn't finished off its peskiest rival, Baltimore native and dedicated doodler Fred Bouchat.
Bouchat started sketching ideas for the team's logo soon after the owner of the Cleveland Browns announced in the fall of 1995 that his franchise would be moving to Baltimore. Bouchat, who worked as a security guard in a Baltimore office building at the time, showed his sketches to anyone who would look at them, and faxed the drawings to an official at the Maryland Stadium Authority for the team's consideration.
Bouchat never heard from the team. But when the Ravens' new logo first appeared in the local newspaper, he immediately noticed that the "Flying B" design looked almost exactly like one of the designs that he had eagerly shown around. Bouchat hired Baltimore lawyer Howard Schulman, who first copyrighted his client's designs, and then filed an infringement suit against the Ravens and the National Football League in 1997.
U.S. District Judge Marvin Garbis, who still presides over the litigation to this day, bifurcated Bouchat's suit into separate trials on infringement and damages. In 1998 a jury found the NFL and Ravens guilty of infringement. According to the jurors, Bouchat's designs had somehow entered into the flow of documents used by the league's in-house artists. But in 2002 a different jury decided that despite the infringement, the Ravens and the NFL didn't owe Bouchat any damages, because the profits from merchandise and souvenirs with the Flying B logo were due to the team's marketing efforts rather than Bouchat's artistic input.
The conflicting jury verdicts have resulted in the litigation equivalent of trench warfare. Armed with the infringement finding, Bouchat and Schulman have repeatedly sued the league, the team, and their business partners practically anytime the old Flying B logo pops upbe it in a stadium photo display, a highlight reel, or a video game. Meanwhile, the Ravens and the NFL, backed by the $0 damages finding, have yet to pay Bouchat a penny.
As the fight has dragged on, the potential recovery has plummeted and the legal bills have soared. Schulman says that his client's case "is being funded by my lack of business judgment." Lawyers for the NFL declined to say how much its defense has cost, but the league has consistently hired talent from top-dollar firms, including Hogan & Hartson (now Hogan Lovells), White & Case, and Quinn Emanuel Urquhart & Sullivan.
In an interview this winter, Schulman argued that an injunction barring the NFL and its partners from using the Flying B logo would be the best solution at this point. "Our message is very simple: Stop using it," Schulman says. "Let the market forces operate. If they want to pay whatever Mr. Bouchat is willing to take [to use it], then fine."
NFL defense counsel Robert Raskopf has countered that it's Bouchat who's been dragging the case out, by suing anyone who's ever used the Ravens' first logo in any context. "If there's a discernible Flying Bno matter how incidental, inconsequential, historical, noncommercial, educational, unexploited, important, factualwe will see it in a lawsuit," Raskopf said at a hearing before Garbis this past October. Raskopf has argued for the NFL in more hearings in the Bouchat litigation than anyone else, first as a partner at White & Case and, since 2006, as a partner at Quinn Emanuel. "The NFL has moved on," Raskopf added at the hearing.
Few IP practitioners will ever face a copyright case as peculiar as this one, given its twists and turns and the bizarre set of underlying facts. But Mark McKenna, a professor at the University of Notre Dame Law School who has written extensively about sports logo licensing, says that Bouchat's suit offers a lesson about the nature of litigation. "People sometimes act irrationally because they get stuck on what the outcome should be," McKenna says. Some contests, it seems, grow too heated to end with the rivals shaking hands.
Maryland's biggest city was left without an NFL franchise after the once-beloved Baltimore Colts left for Indianapolis in 1984. Fans felt jilted by the Colts, who hauled away their belongings in Mayflower moving vans early one snowy March morning.