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Nasir and Matt talk about the trademark filing surrounding Johnny Manziel and Texas A&M. They also answer the question, “Can I put anything in my contracts that prevents my customers from leaving a negative Yelp review?”
Full Podcast Transcript
NASIR: Welcome to Legally Sound Smart Business.
This is Nasir Pasha.
MATT: And this is Matt Staub.
NASIR: And this is our podcast where we cover business in the news with our legal twist and also answer some of your business legal questions that you, the listener, submits to our podcast at ask@legallysoundsmartbusiness.com. We always have to slow that down for everyone. I feel like, if I say it too fast, no one’s going to get it.
MATT: You know, you always bring up the part where we introduce ourselves at the beginning and you always say it’s kind of redundant. I never even really thought about it but I was listening to an episode this morning.
NASIR: Is that the first episode you listened to?
MATT: It was and it was literally just back to back, but I think it’s a good way to distinguish our voices so you know who is who, if you’re talking. I guess that’s the benefit of it.
NASIR: That’s true. I don’t want people thinking I’m Nasir. That would confuse people.
MATT: Now it’s a big mystery. We could do a video podcast and make it easier.
All right, well, let’s jump into it. This is still a very relevant topic. The NFL draft happened a couple of weeks ago. One of the big stories behind that was Johnny Manziel. So, for Nasir’s sake, he was a college football player at Texas A&M, became really popular, won the Heisman as a freshman a couple of years ago and got drafted. Now, he’s going to be in the NFL – in your home state, actually – playing for Cleveland.
NASIR: Nice.
MATT: But the underlying story here with him is between his sort of presence and Texas A&M – or more accurately their stadium. I guess he and his long-time friend who is always in the news with him had tried to trademark “The House That Johnny Built” in order to have that affiliated with the university and I guess initially it’s been denied. I’m sure they’re still going to try to do something with that but it brings up an interesting thing because he’s wanting to trademark this and he’s wanting it to be affiliated with the university but it’s just his name but it would be tied directly into the university so it’s a couple of interlocking pieces but I can see why the registration was refused. The direct language was “consists of or includes a matter which may falsely suggest a connection with Johnny Manziel.” It’s kind of what I was hitting to. I don’t know if you had seen this at all.
NASIR: Well, I first had to do a bunch of research to figure out who Johnny Manziel was and I’m still not sure, really. He’s won some kind of trophy.
But it seems as though there’s the likelihood of confusion and that’s kind of interesting because, even though he’s not connected to any goods or service, he’s just a football player that they denied it which is not unusual just because they say Johnny Manziel is so famous that consumers would presume a connection. I think that statement is kind of funny because I didn’t even know who he was so I guess he wasn’t that famous to people but I suppose football consumers would recognize him.
MATT: This is coming from someone who lives in Texas, by the way. I don’t know how you haven’t heard of him. I think a lot of people kind of dislike him now maybe but he is very widely discussed in any sports talk shows, all that stuff.
NASIR: So, the Johnny Manziel family is not the one that tried to file this trademark. It was this Nate Fitch. Who is that?
MATT: I’m just trying to go off from memory here. I believe it’s like a childhood friend, someone he’s always been in communication with and all these guys always link up with these people that try to make money off of them. If you have a childhood friend that becomes successful, you’ll see it with pretty much every professional athlete so I think it’s one of those situations. I don’t know what he does now but I’ve definitely seen him in the news before with Manziel and there’s some typical trying to make money off of your friend situation.
NASIR: So, what this is implying is that, if Johnny Manziel would have filed it, then it would have been fine but, because they’re trying to file a trademark and using the trademark in a business that’s associated with this person, Johnny Manziel, then that’s a likelihood of confusion with that person. It’s not true so, therefore, regulator denied their trademark application. Interesting.
MATT: It’s kind of good that nothing’s happening right now because he is just one player and I’m sure he has many fans at Texas A&M, I’m thinking more so the players are probably pretty upset that he’s basically grabbing all the attention and they’re affiliating a whole university, a whole football team with one player, so it’s probably for the best that nothing has happened right now.
NASIR: Yeah, that’s understandable, too. The thing is too, what I think the trademark offices are saying also applies to other common law in the sense of use of likeness. You can’t, for example, use a celebrity like this football player and associate it with a product or service if they have not in fact endorsed that product or service and that in a fact is also a liable act on behalf of that company. so, I think, in a way, the trademark office was protecting them from more liability.
MATT: I wonder if Nate Fitch talked to Manziel or if Manziel knew about any of this because it basically says that Manziel is in the driver’s seat to one day own the trademark if he wants. I don’t know. I don’t know if he had spoken to his friend or what the deal is with that. I will say, you said you hadn’t heard of this guy, once he got drafted last week, they sold an insane amount of jerseys, Cleveland Browns jerseys, like, right after he got drafted. He definitely brings in a lot of money and, like I said before, he won the Heisman trophy as a freshman at A&M.
NASIR: That’s pretty huge.
MATT: They’ve always been all right but he kind of really put them on the map that year, a couple of years ago, and they were good last year, too.
NASIR: Well, that trademark is kind of useless though, right? Because “the house that Johnny built” is referring to the Texas A&M Stadium, right?
MATT: Right, yes.
NASIR: So, once he leaves, he’s not going to be able to really profit from that, I suppose, because I don’t know – it doesn’t seem really applicable once he’s gone.
MATT: I think he’s just trying to sell a bunch of apparel, that probably is my guess.
NASIR: Exactly.
MATT: I think he’s wanting to prevent the university itself or whoever is in there selling stuff to sell stuff with his name or likeness without him getting any of the proceeds which happens all the time with the college athletes but what are you going to do?
NASIR: Yeah, we talked about the eleventh man? Not eleventh man. What number was it?
MATT: Oh, the twelfth.
NASIR: Twelfth man. Oh, yeah, there’s eleven people per team.
MATT: We talked about A&M before and I can’t remember why and that was it, yeah.
NASIR: It was Texas A&M that has a twelfth man, too? They have too many trademark issues, for sure.
MATT: I don’t think they’ve even been a player in this little thing that’s going on here. I don’t think they’ve done anything. It was more so their name was just kind of… they’re indirectly related but I wouldn’t be surprised if they filed for a trademark, too. Or do something, if they were smart enough to do the twelfth man stuff then, yeah, all right.
Well, Johnny Manziel, hopefully that’s the last we talk about him because he hasn’t even played a snap at the NFL and he’s already talked about way too much.
NASIR: That segment reminded me of those sports talk shows that get really serious about sports which, I mean, for me, it was more entertainment but we’re really dissecting some of this sports stuff on here.
MATT: There’s too much time and too many shows out there that everything’s just so overcovered, especially if it’s any big-named player or any big-named city. Luckily, he went to Cleveland because, if he would have gone to New York or Dallas, he almost got drafted by Dallas. It just would have been… the internet would have exploded, probably.
NASIR: Well, my brother-in-law is going to be happy. He’s had some hard times as a Cleveland fan.
[MUSIC]
MATT: Let’s get into the question of the day.
“Can I put anything in my contracts that prevents my customers from leaving a negative Yelp review?”
This is from the Dog Groomer in LA, in Los Angeles.
I just took my dog to the groomer yesterday and they did not have anything in there.
NASIR: You left a bad review?
MATT: No, they did a good job. I was impressed. I went to a new spot.
NASIR: Well, besides independent contractors versus employees, probably Yelp is my second favorite topic. It just keeps coming up. But I think we covered this because we just found that one court that ruled that that company that had a non-disparagement clause which had a penalty for $3,500 who was trying to collect, they were ruled against in the court of law. But the reason they were ruled against was because they added the non-disparagement clause to their terms of service. It’s some kind of online service, I believe. It was an online store. They added to it after the fact, after the sale of goods, but what’s funny is that they didn’t enforce that but, if you were to buy a product now and put a bad Yelp review or a negative review somewhere online, this non-disparagement clause would be enforceable, and we’ve talked about this in the past – whether or not having a non-disparagement clause, even if it is enforceable, advisable to be put in your contract because I think you would want to have some kind of loyalty to your brand in the sense or some confidence in your brand and product or service.
MATT: Yeah, I can see it coming both ways. If you have it in there, whether it’s enforceable or not, it might prevent people from leaving any sort of negative review even if it’s accurate. But, if you don’t have it in there, then customers might see that and they might not think about it that way. But it’s a good thing because it’s kind of weird because you’re putting it in there like you’re almost expecting it to happen or it’s happened in the past.
NASIR: Yeah, exactly.
MATT: If I said something and I saw that, I would think about it a little bit.
NASIR: You would think, “Okay, well, what are you trying to hide? What are you trying to protect?” When it comes to online reviews – again, we’ve talked about this in the past – the biggest frustration is that, on one hand, it’s understandable that there needs to be some kind of way for us to be able to see what other people think about a product or service. But the problem is, when it’s online, the internet is just so full of stuff that people can say whatever they want and it could really negatively affect a business unfairly. It’s like making something small into something huge all of a sudden because that one person is the only reviewer on Yelp for example and then now you have one or two stars with only one review but you may have a billion other customers that are more than happy.
MATT: Yeah, that’s exactly right.
It is a really, really big issue for a lot of businesses. I mean, for smaller businesses, a couple of bad reviews can put you out of business, unfortunately, as crazy as that sounds.
NASIR: It’s true.
MATT: That’s the case. It’s just unfortunate.
NASIR: To answer their question, would you put a non-disparagement clause in their contract? How would you advise the dog groomer?
MATT: It was weird because the dog groomer, the one I went to before, there was no contract at all. The one I went to yesterday, there was kind of an agreement, I suppose, but it’s basically just the only thing in there was, if there was an emergency, we have the right to take your dog to a hospital or a vet. It was like, “Yeah, obviously, I’d want that.” There wasn’t anything about a non-disparagement clause or leaving a negative review.
For this specific instance, for a dog groomer, I would leave it out because it’s not going to be a situation where you’re going to give them, I mean, you’re going to present them with something, it’ll pretty much only say that on there, more or less. I think it will just look weird in the circumstance.
NASIR: I agree. Also, from a dog groomer’s perspective, you would benefit so greatly with positive reviews and, just as an example, when you were talking, I started thinking about how, with certain services that I use – like, there’s this cleaning service that they clean every week and when they finish, they send you an email saying, “Okay, we’re done,” but then, in the email itself, it’ll say, “Here is our Yelp page, if you want to leave any reviews.” Right below that though, it has a whole series of questions and comments, like, “If you have any concerns or anything that basically you’re upset with, then please tell us about it because we’re going to try our best to correct it before you leave a review.” I think that kind of approach is much more positive because most of those people that leave a negative review is because they feel frustrated in that they paid for a service or product that they didn’t feel like it met its expectations. So, having a recourse other than an online forum is a great way to distract the customers from leaving a negative review.
MATT: Yeah, you speak from experience that you’ve had a lot of negative reviews.
NASIR: No, that’s not true/
MATT: At least that’s what it sounds like. It sounds like you’re upset.
NASIR: Oh, I do get upset sometimes – when I get cold food or something.
MATT: Well, I think we answered that. That’s good advice – as always. I would never give bad advice, I guess.
NASIR: I do that all the time.
MATT: I would ever say that on the show. Well, we told people to send in their questions and, yeah, I think that’s probably the end of our Monday episode here.
NASIR: Okay. Well, have a good week!
MATT: Yeah, keep it sound and keep it smart!
