Federal Judge Lets Puns Fly in Keeping Suit Against Bon Jovi Alive

Rock stars don't just make teenage girls scream -- they can also make judges go a little pun crazy. That was the case last week when a federal judge saw that rocker Jon Bon Jovi -- who also happens to be one of the owners of the Philadelphia Soul arena football team -- was one of the parties in a pending copyright and trademark suit. In the opening paragraphs of his 29-page opinion, the judge managed to squeeze four Bon Jovi song references and three football terms into his outline of the court battle.

Shannon P. Duffy

The Legal Intelligencer

2009-06-08 12:00:00 AM

World-famous rock stars don't just have the power to make teenage girls scream -- they can also make a federal judge go a little pun crazy.

That was the case last week when U.S. District Judge Michael M. Baylson saw that rocker Jon Bon Jovi -- who also happens to be one of the owners of the Philadelphia Soul arena football team -- was one of the parties in a pending copyright and trademark suit.

In the opening paragraphs of his 29-page opinion in AFL Philadelphia v. Krause, Baylson managed to squeeze four Bon Jovi song references and three football terms into his outline of the court battle.

Baylson noted that the Philadelphia Soul "rose in a 'Blaze of Glory' to win the 2008 national championship Arena Bowl and then was 'Shot Through the Heart' when its 2009 season was cancelled by the League due to financial problems." The team and the league, Baylson said, "remain 'Living on a Prayer' that they will return in the 2010 season."

But in the meantime, Baylson said, the Philadelphia Soul and a former employee "are trading accusations concerning the fall-out of the season's cancellation, in which they each experienced a taste of 'Bad Medicine.'"

In the "kick off" of the battle, Baylson said, AFL Philadelphia and Bongiovi (the actual surname of the rocker) brought copyright and trademark infringement claims against Joseph Krause Jr., the team's former sales manager who, responding with a "turnover," brought counterclaims under the Lanham Act and for misappropriation of his name.

AFL Philadelphia's lawyers moved to dismiss Krause's counterclaims, but Baylson refused, saying: "In the 'first quarter' of what will undoubtedly be a hard fought battle, this court will declare defendant the winner and deny plaintiffs' motion."

Baylson's light-hearted, quick description of the case belies its true tenor. Court records show that the litigation has been hard fought and a bit ugly.

In the opening salvo, Krause sued the team in state court, claiming he was owed nearly $125,000 dollars in outstanding wages. The team removed that suit to federal court but lost the venue battle when the case was remanded back to state court.

In a separate suit, the team is claiming in federal court that Krause illegally made and sold championship rings and, in doing so, misappropriated the team's logo and the ring design.

Krause's lawyers, George Bochetto and David Heim of Bochetto & Lentz, responded to that suit by filing counterclaims that accuse the team of misusing Krause's name after he was fired.

In the counterclaim, Krause claims that an e-mail sent to fans about the season cancellation was falsely designated as being sent by Krause, even though he had no role in drafting it and had already been fired at the time it was sent.

Krause claims the team's motive was to cause confusion among fans and to falsely associate Krause with the unpopular decision to cancel the 2009 season and the resulting controversy over season ticket refunds.

The lawyers representing Bon Jovi and the team -- Camille M. Miller and Melanie A. Miller of Cozen O'Connor -- urged Baylson to toss out the counterclaims, arguing that Krause lacked standing to sue under the Lanham Act because he had failed to allege any "competitive harm" and because his name is not a "legally protectable mark."

Baylson disagreed, saying Krause satisfied the test for establishing that his name has attained "secondary meaning" by alleging that he is well-known in the sports and entertainment business as a media personality and public relations specialist.

The team's lawyers also argued that recipients of the allegedly infringing e-mail could not be confused as to its origin because it reflected and indeed did originate from the Philadelphia Soul.

Baylson disagreed, finding that since the e-mail to the fans came from "krause@philadelphiasoul.com and carried the subject line "From: Joe Krause," the counterclaims adequately pleaded a likelihood of confusion.

Camille Miller could not be reached for comment on the ruling. Bochetto declined to be interviewed.