...And Down the Stretch They (Don't) Come

05/01/2018 | Business Litigation

...And Down the Stretch They (Don't) Come

Mint juleps in a silver cup, guessing the lyrics to “My Old Kentucky Home,” and betting on a long shot are all essential Derby time traditions. But there is one thing you will not hear this Derby season, as the horses gallop around the last bend at Churchill Downs— “And Down the Stretch They Come!”

That phrase, made famous by legendary ABC and NBC sports broadcaster Dave Johnson, was trademarked by him following his retirement in 2012. Johnson has never had to file suit to enforce his ownership of the phrase. However, he does use the trademark protection to sell T-shirts with the phrase and raise money for disabled jockeys. He also uses the phrase for his horse racing show on SiriusXM that he hosts with Bill Finley.

As the Courier Journal reported this week, Larry Collmus, who has called every Derby since 2011, refuses to use the phrase. Collums told the New York Times in 2012 “When I hear it from another announcer I say: ‘That’s awful. You can’t say that. It’s Dave Johnson’s line.’”

Johnson is not the only sports broadcaster to trademark a signature phrase. College hoops announcer Dick Vitale—the bane of Cards and Cats fans statewide—has a trademark for his “awesome baby” exclamation. Boxing announcer Michael Buffer trademarked his famous “Let’s get ready to rumble!” line, while late Chicago Cubs radio man Harry Caray had four trademarks for his signature “Holy Cow!” exclamation.

Johnson’s trademark is also not the only one in the horse racing world, either. Churchill Downs first trademarked the phrase “Kentucky Derby” in November 1973. Coincidentally, 1973 is the same year Secretariat made horse racing wildly popular among the American public by winning the “Triple Crown,” another trademarked phrase.

Not to be outdone, the Commonwealth of Kentucky once found itself in hot water over a dispute involving copywritten images of horses. In 1997, both the state licensing bureau and the Kentucky Horse Park were threatened with lawsuits for copyright infringement by German photographer Peter Thomann for use of his iconic “the Soul of a Horse” photograph. The state agreed to remove the image of the galloping horses beneath Churchill Downs’ spires from the license plates, replacing it with a cloud in the shape of Kentucky over rolling fields.

For this year’s Derby, as you try to remember Stephen Foster’s lines to our state song, try not to forget Dave Johnson excitedly shouting his trademark as the horses gallop down the final stretch.

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Here at the Poppe Law Firm, we routinely assess and represent clients in breach of contract claims, business disputes, and corporate class actions. Please contact us with any claims you may have and, if you’re up for it, any witty Derby puns!