The Athletic Talks to Josh Gerben about Use of the NBA’s Trademarks in ‘Winning Time’

After the premier of HBO’s new 10-part series “Winning Time: The Rise of the Lakers Dynasty,” the NBA released a statement expressing its displeasure surrounding the unauthorized use of its trademarks within the limited series.

The Athletic spoke to trademark attorney Josh Gerben about what the theoretical infringement case could look if the NBA decided to take action.

At the root of a theoretical trademark case would be whether views think “Wining Time” is green-lit by the NBA and Lakers. “Consumers might think this kind of docu-series could have been authorized,” said Josh Gerben. “That’s where you have consumer confusion.”

And consumer confusion is ground for trademark infringement lawsuits – but probably not in this instance, Gerben said. This is likely because the NBA and the team does not want anyone to have to testify, in open court, about whether the onscreen depictions are true or not.

“If it’s a true story, you have a fair-use defense. If the NBA sues HBO, HBO’s defense is they’re telling a real story,” Gerben said. “Under oath, they would have to answer questions that they don’t want to respond to. The NBA would put itself and players in a precarious position. It becomes extremely messy if you file a lawsuit.”

Source: Shea, Bill. https://www.theathletic.com. “NBA ‘objects’ to ‘Winning Time’ trademark use, but legal options would be messy.” 09 March 2022.