Westgate Sends Cease and Desist to Barstool for Copyright Infringement
- Barstool use of the phrase “Good teams win, great teams cover” allegedly infringes upon a 2012 trademark by WestGate SuperBook
- This is the second letter WestGate has sent to Barstool to stop the use of the trademark
Barstool Sports, a subsidiary of Penn National Gaming, is facing potential legal action after WestGate SuperBook sent a second cease and desist letter following Barstool’s use of the phrase “Good Teams Win, Great Teams Cover” on various merchandise.
It is unknown when the first letter was sent to Barstool, but according to a picture that Barstool founder Dave Portnoy posted on his Twitter, the second letter was sent on January 12, 2021. News of the letter became public on Wednesday of last week following the tweet by Portnoy. Portnoy’s response to the letter was his usual braggadocious and carefree manner.
“Nothing makes me more confident when other gambling companies like @WestgateVegas start sending us to cease and desists for us tweeting “good teams win, great teams cover” By the way, there is literally no chance they invented that. That’s like saying you invented the question mark.”
According to the U.S. Patent and Trademark Office, WestGate has had the trademark registered for almost 12 years now. Whether or not WestGate invented the phrase is irrelevant. The evidence shows that the trademark is live and owned by WestGate.
In the letter sent by Westgate’s attorney Justin McNaughton of the law firm Greenspoon Marder, Westgate previously notified Barstool about the use of the trademark on June 4, 2020. Barstool’s disregard of the first letter prompting the second is cited as evidence that Barstools continued use of the trademark is willful conduct.
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What is a trademark, exactly?
It’s a “word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of goods of one party from those of others,” says the U.S. Patent and Trademark Office.
Trademark law can be kind of nitpicky. Portnoy’s response boils down to him saying that the phrase “Good Teams Win, Great Teams Cover” is a common phrase, so the protection against use by others is limited, which is true. In trademark law, a common phrase can be trademarked by multiple people, but its use is distinctive to each owner of the trademark. Trademark protection only prevents others with a similar service or product from using the phrase.
Trademark infringement occurs when someone else’s use of a trademark would likely confuse the source of goods or services. According to the law, with Barstool now in the sports betting industry and operating books, their use does invoke infringement.
David Portnoy VS. Goliath
Before the 2020 partnership with gaming company Penn National, Barstool Sports was strictly a sports media company producing hot takes and featuring at parties across college campuses. Founder Dave Portnoy is no stranger to controversy, even welcoming it. Portnoy is a firm believer in “All publicity is good publicity.” This mindset has worked out very well for him. The 2020 partnership with Penn National has launched Barstool Sports into the big leagues of sports betting. Penn National bought a 36% stake in Barstool for 163 million dollars.
Since the deal, Penn National has opened a number of Barstool sportsbooks across Colorado, Indiana, and Michigan. Barstools betting app is available in Pennsylvania as well, and looking to go live in Illinois within the year.
But for Barstool, a bigger pond means bigger fish. WestGate is that bigger fish. The WestGate Superbook is arguably one of the most famous amongst the Vegas elites. The Hotel-Casino was founded in 1986 and has maintained its status as the go-to book in Las Vegas. The trademark in dispute has been used by The Westgate in most of its marketing materials, including on its website and on T-shirts given to entrants for the SuperContest, its annual NFL handicapping competition.