NHL and Seattle Kraken Secure Wholesale Denial of Rule 12 Motion

On behalf of the National Hockey League and the Seattle Kraken hockey club, Skadden secured denial of a motion for judgment on the pleadings filed by T-shirt company Smack Apparel in the Western District of Washington. The case principally concerns T-shirts sold by Smack Apparel that utilize the trademarked names and logos of the NHL’s Seattle Kraken. Smack Apparel argued that the court should decide as a matter of law that the shirts constituted protected artistic expression and that the NHL could not satisfy the test for evaluating infringement. However, District Judge Thomas Zilly agreed with Skadden that there are multiple outstanding fact issues that preclude judgment at the pleading stage, including whether the T-shirts constitute “expressive works.” Judge Zilly also denied Smack Apparel’s motion for judgment on the pleadings with respect to the claim that the company infringed the Seattle Kraken’s copyrighted logos.