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Op-Ed

Quit while you’re behind

March 7, 2022

If at first you don't succeed in court, don't try, try again. Also, a race track may be a government agency.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Remain calm. Take a deep breath. Breathe.

Now imagine a brand new legal theory that will win your case. Can you manifest it?

No, you can’t.

At least that was the recent ruling from a federal judge in Michigan in a case in which you would have thought the parties would just mellow out and avoid going to court.

The ruling sanctioned a lawyer who sued a company called Calm.com for, among other things, “trademark bullying.” The trademark in question was “Take a Deep Breath.”

Imagine being attacked by a really calm bully.

The cause of action for trademark bullying was dismissed because there is no such thing, and then the lawyer filed a revised complaint for trademark bullying. He didn’t file a response to a motion to dismiss the second try. The court asked why.

“In reply, (the lawyer) indicated: ‘I really cannot answer that. It was probably for a veritable plethora of reasons at the time, that’s all I can say to the Court.’”

I have to note here that the lawsuit was over monopolization of the trademark “in the field of ‘relaxation.’”

There shouldn’t be a place for bullying (or responding to motions) in the relaxation field.

The relaxed lawyer also at one point “admitted that he had not reviewed the relevant caselaw.”

Here’s my favorite part of the ruling — a description of what the trial judge did after the motion to dismiss the repeated bullying allegation:

“The Court indicated that it would grant Defendant’s second motion to dismiss Count VI and would not issue a written opinion because ‘it’s not worth it.’”

Might as well relax.

Race discrimination. No, not that kind. I’m talking about horse racing discrimination. As you may have heard, lawyers for thoroughbred horse trainer Bob Baffert last week filed a federal lawsuit in Kentucky against Churchill Downs Inc. and two of its executives for barring Baffert from entering horses in races at Churchill for two years.

The suspension means that Baffert can’t enter horses in the Kentucky Derby even though, year after year, he has major contenders in the race running for really, really rich people.

There’s a whole lot that can be said about this dispute and a lot of different ways of looking at it, but I know most of you are barely even aware of horse racing, so I’m not going to go into it.

But here’s the legal question that I wonder about: does the track have to allow any horse to run in the Kentucky Derby? Wouldn’t there be hundreds of horses jamming the track if absolutely anyone could enter?

Churchill Downs is a private business. It’s regulated but most businesses are. Should a racetrack be forced to allow a gay horse or a Nazi horse to run? What if they’re a coupled entry? (That’s a horseracing joke. I apologize.)

The 56-page lawsuit goes on at some length trying to justify itself. The argument boils down to explaining that the track is licensed and regulated by Kentucky’s Racing Commission. “Through this arrangement, the relationship between the Racing Commission and CDI is deeply entwined, and CDI’s actions with regard to Baffert cannot be considered ‘purely private.’”

So they’re impurely private? Is the racetrack a public utility?

The suit also says only Baffert and his staff have been banned “despite the prevalence of more severe medication violations — real violations — by other owners and trainers who race on CDI properties.”

So maybe it’s just plain old discrimination against white-haired trainers who win a lot.

Anybody want to bet on this suit?

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