By Rob Harris, Golf Dispute Resolution
In a complaint filed in a New York federal court, a company created by Christopher Silano is taking on the NBC golf conglomerate, including, in addition to NBC branded entities, GOLFNOW, and The Golf Channel. For good measure, the complaint adds Rory McIlroy and his company Rory McIlroy Inc. as defendants.
The complaint alleges that Mr. Silano formed a company called GolfClub LLC, which
“operates GOLFPASS, which is a mobile application service, website, and United States Golf Association (“USGA”) and Metropolitan Golf Association (“MGA”) registered member golf club. GOLFPASS features a membership program and subscription service for playing golf and other golf related activities. GOLFPASS facilitates the discovery of new golf courses at a growing network of partner golf facilities and provides members with an easy to use platform for reserving tee times, golf practice, and golf instruction, all at exclusive member rates using an innovative credit based system. Members also receive exclusive content, invitations, and access to community events.”
According to the complaint, GolfClub LLC has been using the GOLFPASS mark since at least March 1, 2018, and it has a trademark application pending. The company is found on the web at www.golfpass.co.
The complaint asserts that the defendants are unlawfully infringing on the GOLFPASS mark by virtue of launching in early 2019 an NBC GOLFPASS product and service. Plaintiff alleges that the defendants are offering “a directly competing service with GolfClub’s tee time and golf booking platforms and services.” Plaintiff describes a series of incidents evidencing marketplace confusion, including what the complaint describes as “the most telling incident of all,” specifically that “NBC’s own social media account mistakenly confused GOLFPASS for NBC GOLFPASS!”
“On April 27, 2020, Silano received a notification from Facebook that GOLFPASS’s Facebook account page had been mentioned in a post. The GOLF Business Solutions Facebook account, which is an NBC account and has the NBC peacock logo featured prominently, posted ‘Tune in tonight for Fairway to Table – a new series on GolfPass. Get an inside look at the premier cuisine served up to top golf and country clubs nationwide.’ This post included a link to GolfClub’s GOLFPASS Facebook business page.”
As for Rory McIlroy, the complaint alleges that he is affiliated with the NBC GolfPass offering.
In addition to the Lanham Act claims addressing the trademark issues, plaintiff has fired what might be the more substantial shot across the NBC/GolfNow/Golf Channel bow, claiming that it is exerting monopoly control over the online tee time booking industry. The complaint references NBC’s acquisition in late 2019 of EZLinks, which was the largest remaining online tee time competitor, alleging as follows:
“NBC, GolfNow, and Golf Channel now control TeeOff.com, which is part of EZLinks’ portfolio of assets, in addition to the GOLFNOW/NBC GOLFPASS booking platform. According to Forbes Online Contributor, Erik Matuszewski, “GolfNow was already the biggest online tee time agency in the golf industry. Now it’s seized an even bigger share of the market. In a move with major ramifications throughout the golf world, NBC Sports Group acquired EZLinks Golf, including its technology platforms, business solutions and, perhaps most significantly, its prominent online tee time booking platform TeeOff.”
In addition to suing for damages allegedly resulting from this exercise of monopoly power, plaintiff is asking the court, pursuant to the federal Clayton Act “to requir[e] Defendants NBC, GolfNow, and Golf Channel to divest such assets sufficient either to enable the creation of a separate, distinct, and viable competing firm that can replicate EZLink’s competitive significance in the marketplace before the Acquisition, or otherwise to restore competition to the online golf booking market comparable to that which existed before the Acquisition.”
The complaint, taken at face value, would be a game changer, especially with respect to GOLFNOW's online booking activities, so obviously look for the defendants to vigorously challenge plaintiff’s assertions every step of the way.
Golf Dispute Resolution is recognized by the American Bar Association Journal as one of the “100 most compelling” law blogs. Rob Harris, Author of Golf Dispute Resolution can be reached at rharris@golfdisputeresolution.com