Michael Ford (post until Oct. 31/19)
Intellectual Property, Charity and Not-For-Profit

League agrees to quit Humboldt Broncos trademark bid

It's good news that the faceoff between the Humboldt Broncos and the Saskatchewan Junior Hockey League (SJHL) in the wake of the fatal bus tragedy is in the process of being resolved, Toronto IP and charity lawyer Taras Kulish tells AdvocateDaily.com.

Kulish, a senior associate with Steinberg Title Hope & Israel LLP, says not only was the spat between the league and the team over slogans including “Humboldt Strong” a public relations disaster, it also raised legal questions.

The team took on the SJHL after it applied to trademark nine slogans including "Healing is in the Game" and "Sticks on the Porch" weeks after the deadly bus crash which killed 16 and injured 13, CTV reports.

The team's president said the league's board of governors met this week and unanimously agreed that those trademarks should belong to the team and the community.

"We are just working through the final stages of that process to ensure that it falls in the rightful hands of the Humboldt Broncos and our whole Humboldt community," he said.

While SJHL’s application put the league in the driver’s seat to secure the rights, Kulish says it wasn't an open net. He says although it controls proprietary rights to team names and broadcast rights it doesn’t necessarily extend to generic hashtags.

“You could argue the town, not the league, has the right to the use of slogans and hashtags in connection with the Humboldt bus tragedy,” Kulish says, noting SJHL plans to sell the branded products.

The April 6 crash had an impact beyond the small Prairie community, with hashtags like #Humboldtstrong and #Sticksontheporch going viral on social media.

A GoFundMe page dedicated to the Humboldt Broncos quickly raised more than $15 million for the families of the dead and injured. Those funds have been transferred to a non-profit corporation, the Humboldt Broncos Memorial Fund Inc.

The president of the hockey team and memorial fund said although the process of distributing those funds will involve approval from the courts, they remain committed to helping the affected families, Global News reports.

There’s also a website humboldtstrong.info, where a statement from the team prior to the league’s trademark application makes it clear they are not endorsing any other form of fundraising.

In light of the public’s outpouring of support, SJHL applied for trademarks two weeks after the crash, without consulting the team, and partnered with a clothing company to sell 'Humboldt Strong' T-shirts, with plans to put money raised into a mental health program for all teams in the league.

“When people buy those T-shirts, they do so with the expectation they are helping raise money for the Humboldt Broncos and not for the league.” Kulish says. “This is important because, beyond trademark law, there’s a trust issue at play. You cannot make it appear you are fundraising for a particular cause if, in fact, you have other plans, no matter how laudable. Funds collected for one purpose automatically have a trust attached to them for only that purpose.”

The trademark application was prone to challenge, he says, because the league probably doesn’t own the rights to the hashtags and it appears on the surface to be a pre-emptive and opportunistic move.

“Even if that wasn’t the league’s intention, that’s the way it might be interpreted,” Kulish says. “Furthermore, the people who set up the GoFundMe campaign are the trustees of the money raised, which does not seem to involve the SJHL.”

Global reports that under Saskatchewan law, “Money raised through a public appeal must follow a process that includes the appointment of a supervising judge, submitting a proposed court order for fund allocations, and a timeline for distribution.”

Kulish says the Saskatchewan Office of the Public Guardian Trustee would likely get involved to ensure there is no breach of trust on the part of any party which raised funds through a public appeal.

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