Until this season, the Los Angeles Clippers have never given their fans much reason to cheer. Since moving to L.A. 27 seasons ago, they have a win percentage of 0.349 and have only made the playoffs 4 times. Through all the failure, one man has stuck with team– Clipper Darrell. Sadly, after 15 seasons of being the Clippers’ biggest supporter, it looks like Clipper Darrell will have to go back to being Darrell Bailey. Bailey announced on Wednesday that the Clippers no longer want him to be Clipper Darrell. The Clippers issued their own statement claiming Bailey refused the team’s request to consult with them on all his public appearances and/or commercial ventures, but he refused. The Clippers claim Bailey is “not actually a fan of the Clippers, but a fan of what he can make off of the Clippers.”
Considering that Bailey has been to over 350 consecutive home games, nearly all of which were Chris Paul/Blake Griffin-less miserable affairs, it seems harsh to claim Bailey is simply trying to profit off his beloved team. Although he does sell Clipper Darrell merchandise, Bailey has been a season ticket holder for over 10 years and sports a custom-made, half red, half blue suit to home games.
When he’s not at Staples Center, he’s driving around in a customized red, white, and blue 1995 BMW with a Clippers logo on the hood and a “CLIPER D” license plate. Bailey, his wife and four children, live in a house painted in Clippers colors. While he might have questionable decorating taste, there is no denying the man is dedicated.
If Bailey ignored the Clippers request and continued to use Clipper Bailey, it is possible the Clippers could take legal action based on trademark infringement. Bailey’s best bet would be to assert an equitable defense. Under the defense of acquiescence, he would have to show the Clipper’s responded to his actions with implicit or explicit assurances upon which he relied. Considering that the Bailey has used the mark for over 15 years without incident, it seems he might be able to show the Clippers approved of his conduct.
Bailey might also seek a defense under laches. He would have to show that (1) the Clippers had knowledge of his use of their mark, and (2) the team inexcusably delayed taking action with respect to Bailey’s use of the mark. Likewise, under equitable estoppel, Bailey would have a defense if he could show (1) the Clippers’ misleading communication, combined with their knowledge of the facts, prompted Bailey to infer that the team would not enforce its rights against him; (2) he relied on that; and (3) he would be prejudiced if the Clippers were allowed to bring suit. Again, it does not look good for the Clippers that they had knowledge of Bailey’s use of the mark but waited over 15 years to take any kind of action. However, because the Clippers have a strong mark, Bailey’s equitable defense might deny the team monetary damages, but the Clippers could likely get injunctive relief to prevent further use of Clipper Darrell.
The situation is spiraling into a public relations disaster for the team. Fans are wondering why the team didn’t seem to care about Bailey using the name when the team was the laughing stock of the NBA but have suddenly changed their tune now that the Clippers are in third place in the Western Conference. And it’s not just Clippers’ fans who are speaking out in support of Bailey. Blake Griffin tweeted, “Bring back #ClipperDarrell,” and Chris Paul tweeted to Bailey “WE GOT YOU!!”’’
In the meantime, it looks like the Clippers will be stuck with their number two celebrity fan– Frankie Muniz (a.k.a Malcom in the Middle).
