Note: This is a follow up to our October 13 post, "Luka Doncic v. His Mom: One Athlete's Legal Challenge to Reclaim His Name and the Case's Potential Impact in the New NIL Era."
Mirjam Poterbin, the mother of NBA Superstar Luka Doncic, has filed a motion to dismiss her son's petition to cancel the trademark that she currently controls. Poterbin's memorandum submitted in support of her motion argues that Doncic's submission lacks a "valid ground" for contesting the registration. Poterbin's position is that Doncic's consent agreement was submitted along with her application for the trademark at issue, that the consent agreement was valid, and that Doncic freely gave away his privacy and publicity rights to her by entering into the agreement and authorizing Poterbin to use and register the mark.
Interestingly, Poterbin hardly addresses the legality of rescinding consent, almost ignoring the argument and mentioning it only by way of a brief parenthetical that sets the argument aside, but subtly hints that the cancellation of consent may be legally questionable. Poterbin further argues that the connection between herself and her son is not false. Poterbin asserts that Doncic has admitted that Poterbin provided long-term assistance to him with his business affairs, and that Doncic provided Poterbin with the written consent to use and register the mark so that she could continue handling his business affairs associated with a line of goods and services listed in the registration.
With respect to the abandonment issue, Poterbin argues that Doncic's allegations in the petition (that "upon information and belief" the mark was not being used for any goods or services and that "upon information and belief" Poterbin lacked the intent to resume use of the mark) are insufficiently pled, insofar as Doncic did not provide any factual support for the allegations in the petition and did not demonstrate any reasonable inquiry into whether the mark was in fact abandoned.
Of note, Poterbin does not contradict Doncic's argument with any factual indication or evidence that the mark is, in fact, being commercially used or that she does intend to resume use of the mark.
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