By: Rob Harris
Canadian golfer Moe Norman, who died a few years ago, was sufficiently renowned as a ball striker that Tiger Woods once said that only two golfers–Norman and Ben Hogan–”owned” their golf swings, something that Tiger claimed he aspired to do. The Norman swing, deemed “unconventional”, has been described thusly: “rigid arms extended far from his body, a very wide stance with minimal knee bend, shorter-than-usual backswing and extended follow-through with minimal hand action, which produced amazingly accurate ball placement.”
As recently noted by a federal court, Norman was sufficiently entrepreneurial that, at the time of his death, his will passed to his estate ”the title and interest in and to Moe Norman’s name and right of publicity. The Estate of Moe Norman also owns the trademark rights to the MOE NORMAN® mark for uses in connection with golf instructions, DVDs, and other golf related goods/services.”
Norman’s estate, in turn, licensed the rights to a former student, Todd Graves, to be used in Graves’ golf school.
Having secured these rights to use the Moe Norman name and accoutrements, Graves was upset to learn that another purported Moe Norman disciple–Greg Lavern–was invoking his relationship with Norman in peddling golf related goods and services, and had gone so far as to publish a book entitled “FINISH TO THE SKY THE GOLF SWING MOE NORMAN TAUGHT ME: GOLF KNOWLEDGE WAS HIS GIFT TO ME.”
Mr. Graves accordingly filed suit, claiming that Mr. Lavern’s promotion of the relationship and secrets of the Moe Norman swing constituted an unlawful appropriation of the intellectual property rights that that Graves had acquired from the Norman estate.
The Court characterized Mr. Graves’ allegations as follows:
“Plaintiffs assert that defendant is engaged in conduct intended, or at least has the inevitable effect, of creating a likelihood of confusion as to affiliation between defendant and the Moe Norman mark. Specifically, plaintiffs cite defendant’s prominent and serial invocation of the ‘Moe Norman’ name and his likeness as the key feature of all his promotional activities as evidence. Plaintiffs also contend that defendant’s express claims that he is the ‘exclusive’ keeper of Moe Norman’s secrets, is Moe Norman’s sole protégé, and is an heir to Moe Norman’s golf knowledge are evidence of his intentions to create a likelihood of confusion that he is affiliated with plaintiffs who have the legal right to the Moe Norman trademark and his publicity rights.”
As one might expect, defendant Lavern’s take on his credentials as a “Moe Norman whisperer” was somewhat different. As referenced by the court, Mr. Lavern contended that “he holds the true knowledge of Moe Norman’s original swing, which Moe Norman taught him for more than thirty years,” and that Mr. Graves “is teaching a much limited and different ‘single plane golf’ swing that is different from Moe Norman’s ‘original golf swing.’” Mr. Lavern also asserted that ”Moe Norman, while he was alive, visited defendant and gave him the exclusive rights to teach, promote, and write a book on his golf swing and their relationship.”
Turning to the merits, the court found that Mr. Graves had preliminarily shown a substantial likelihood of succeeding:
“It is clear that the Moe Norman mark is a federally registered trademark and enjoys a presumption of protection. It is also clear that defendant used this mark in connection with his book “FINISH TO THE SKY THE GOLF SWING MOE NORMAN TAUGHT ME: GOLF KNOWLEDGE WAS HIS GIFT TO ME” and other golf related products or services through his postings online, particularly his postings on finishtothesky.com6, Facebook, LinkedIn, and his blog at canadianballstriker.wordpress.com. It is also clear that this use is likely to create, and has already created, confusion in the market place. The Moe Norman mark being used by both parties is completely identical; defendant uses this mark to promote his current and/or future golf related services through this mark; both parties utilize mainly the world wide web to promote golf related goods or services primarily based on Moe Norman’s swing; these goods or services are provided to nonprofessional golfers interested in learning Moe Norman’s swing or, at the very least, to golfers who are looking to learn/improve their golf swing; and evidence presented by the parties to the Court through their briefs and at the evidentiary hearing show that there is actual confusion among the consumers on the nature and extent of the parties’ affiliation to Moe Norman and the authorization/authenticity/source of the services the parties provide.”
Recognizing, however, that the court was deciding at this juncture a preliminary injunction, which required Mr. Graves to meet a higher burden, the court refused to grant Graves all the relief he was seeking. While ordering Mr. Lavern to stand down “from using the Moe Norman® mark or speaking/implying any affiliation with the Moe Norman Estate, Todd Graves, or Todd Graves Golf Academy in association with any golf related goods or services,” the court refused, at least for the time being, to prohibit the ongoing sale of Mr. Lavern’s book.
So, for all those clamoring for a piece of the Moe Norman mystique, unless and until the court rules otherwise:
1. You will have to go to Mr. Graves for goods and services, i.e. instruction;
2. You may still order a copy of “FINISH TO THE SKY THE GOLF SWING MOE NORMAN TAUGHT ME: GOLF KNOWLEDGE WAS HIS GIFT TO ME,” available on Amazon at prices ranging from $116 to a cult-like $1222.
Hit ‘em straight.