Facenda Jr. v. NFL Films Inc.: 'Voice of God' Case Settled Third After Third Circuit Ruling

Abstract

"Pro football, the game for the ear and the eye…This sport is more than a spectacle, it is a game for all seasons…X's and O's on the blackboard are translated into imagination on the field".

This 13 seconds of digitally-altered audio, incorporated by National Football League Films, Inc. into "The Making of Madden '06," lies at the heart of the lengthy legal saga between the estate of John Facenda and NFL Films, Facenda Jr. v. N.F.L. Films, Inc., et al., 542 F.3d 1007 (3rd Cir. 2008). The Third Circuit’s decision is instructive on three key fronts.

First, it highlights the continued challenge facing courts to consistently apply the existing federal jurisprudence of trademark infringement to cases of false endorsement involving famous persons. Second, in a case of first impression for the Third Circuit, it establishes the applicable standard of proof in such false endorsement cases as a "likelihood of confusion", as opposed to the much more rigorous standard of "actual confusion". Third, a determination of "likelihood of confusion" necessarily entails (at least within the Third Circuit) a genuine issue of material fact, and not one that can be decided by a judge in a summary judgment motion. Although this case was remanded back to the lower court for a trial on the "likelihood of confusion" issue, the parties subsequently settled in February 2009. Terms of the settlement were not disclosed.

Keywords: Intellectual Property, Facenda, NFL, Voice of God, Trademark Law, Right of Publicity, Likelihood of Confusion, Consumer Confusion, Federal preemption

JEL Classification: K00, K10, K19, K20, K29, K30, K39, K40, K41, K49