- Can Adults Keep the “Brew” in Brewskee-Ball?
- March 20, 2012 | Authors: L. Robert Batterman; Robert E. Freeman; Howard L. Ganz; Joseph M. Leccese; Jonathan H. Oram; Howard Z. Robbins; Bradley I. Ruskin
- Law Firm: Proskauer Rose LLP - New York Office
If you ever visited an arcade as a child, you probably played Skee-Ball on one of the machines that Skee Ball, Inc. (“SBI”) markets, manufactures and distributes. You may even have been lucky enough to redeem the tickets you won for a “prize” that was of questionable (at best) quality. By putting the same Skee-Ball machines in bars instead of arcades and creating what they call “The First-Ever Competitive Skee-Ball League” under the name “Brewskee-Ball,” Full Circle United, LLC (“Full Circle”) has drawn in a new demographic of Skee-Ball players and given them a reason to clear off some space on their mantels instead of in their junk drawers.
Given the importance of SBI’s product to Full Circle’s business, one might assume that the two companies would make natural business partners. However, although both parties acknowledge that they entered into discussions regarding a possible business relationship, the only fruits of those discussions are found in a confidentiality agreement that was signed by the companies in 2010. In fact, in October SBI filed a complaint in the Northern District of California claiming that the company’s “SKEE-BALL” trademark, which was issued in 1929, has been wrongfully integrated into Full Circle’s own “BREWSKEE-BALL” trademark, as well as in the advertisements and slogans that Full Circle uses to market Brewskee-Ball. SBI has requested that the court validate its ownership of the “SKEE-BALL” trademark and award the company monetary damages while canceling Full Circle’s “BREWSKEE-BALL” trademark and stopping Full Circle from making any mention of Skee-Ball.
In response, Full Circle filed its own complaint in the Eastern District of New York seeking damages and the cancellation of SBI’s “SKEE-BALL” trademark, among other declaratory relief. In doing so, Full Circle argued that Skee-Ball is a generic term and that SBI was granted an invalid trademark. Full Circle further attacked SBI’s trademark based on what Full Circle argued was inconsistent enforcement of the trademark in “SKEE-BALL” and SBI’s assertion of a claim that Full Circle believes is not warranted by the depth of the actual trademark. Full Circle also attacked SBI through antitrust and contract law, and alleged that SBI has tried to drive Full Circle out of business while asserting their perceived enforcement rights inconsistently, and has violated both the aforementioned confidentiality agreements and an alleged oral agreement regarding Full Circle’s initial business plans. Full Circle has claimed that before even starting its business, the company’s founders, Eric Pavoney and Evan Tobias, met with SBI’s CEO, Joseph Sladek, to discuss their idea. Pavoney and Tobias claim that Sladek mentioned that SBI was not in the type of business that would run a league, and that he “agreed” to their pursuit of the idea while wishing them luck. Full Circle has claimed that this alleged conversation constitutes a verbal agreement between the two parties.
Finally, Full Circle, a New York limited liability company with its principal place of business in Brooklyn, NY, successfully argued that its case against SBI, a Pennsylvania corporation with its principal place of business in Chalfont, Pennsylvania, should be argued in the Eastern District of New York instead of the Northern District of California. The California court rejected SBI’s choice of forum in the interest of justice, finding, inter alia, that the convenience of the parties and witnesses strongly outweighed SBI’s contention that Full Circle had substantial contact with Dimensional Branding Group (SBI’s Marin County, California-based agent for licensing, business development and promotion of SBI and the “SKEE-BALL” trademark).
The parties have since been trading court filings in the Eastern District of New York, but on March 7, the court called a partial halt to the proceeding for a month, to allow the parties to seek private mediation.
Meanwhile, patrons of the Full Circle Bar in Williamsburg and Brewskee-Ball players throughout the country will be awaiting the outcome of this case while hoping that they will continue to have their shot at glory. The manufacturers of those flimsy “prizes” also will be paying close attention. Maybe if all of those adults can no longer play Brewskee-Ball they might pack the arcades, and use their winnings to increase the demand for small plastic snakes and erasers that will never work.