December 9, 2025
By Emily Poler
I’m not much of a sports fan (although I confess to curiosity about the new Professional Women’s Hockey League), so it’s hardly surprising I never pay attention to ads tied into the Super Bowl. Sure, I’ll go to a party on the day to nibble nachos, chat with similarly blasé guests and watch the halftime show (I’m extra excited for Bad Bunny this season), but that’s pretty much where my interest starts and ends.
So, of course, it took something related to trademarks to make me pay attention to the Super Bowl. I’m not entirely sure how it came up, but I think I was taking an online continuing legal education course and the speaker commented on the fact that brands advertising events or products related to the Super Bowl always use phrases like “The Big Game” instead of “Super Bowl,” because they’re afraid of invoking the wrath of the NFL. I was like, “wait, what?”
While any diehard football fan might be well aware that the words Super Bowl are trademarked, I always assumed (if I ever thought about it at all) that others could use those words to describe the event even if the words Super Bowl are covered by U.S. Trademark Registration No. 0882283, filed by NFL Properties, LLC in 1969. (The NFL also has copyrights to the broadcast of the event, and all sorts of other issues arise from there, but that’s a story for another day.) The NFL also has registered trademarks for “Monday Night Football,” “Super Sunday,” “Gameday,” and inexplicably (at least to me) “Extra Points.” And, it turns out, the NFL is extremely aggressive about pursuing any unauthorized use of these trademarks.
As a reminder for the non-trademark cognoscenti reading this, trademarks exist to ensure that consumers aren’t confused about the source of goods or services. In the case of the NFL, that means its trademarks ensure that only goods or services affiliated with the NFL are advertised and sold using its registered branding. Or, looking at it from a consumer’s viewpoint, trademarks are there to indicate that when they buy something that says “Super Bowl,” it’s actually affiliated with the NFL and its “Spectacular Sports Event.”
There are a couple of exceptions to this rule. One is called descriptive fair use. That allows someone to use another’s trademark to describe their product. So, for example, CVS can sell generic ibuprofen with a line that says compare this to Advil.
The other big exception is nominative fair use. This doctrine allows people to use a trademark belonging to another where (1) it would be hard to identify the product or service without using the trademark, (2) the person using another’s trademark only uses as much of the trademark as is necessary to identify the product or service, and (3) there’s nothing to suggest that the person using someone else’s trademark is being endorsed by the trademark owner. So, to stick with the sports world, this doctrine allows me (or, more realistically, someone else) to invite people over to watch a Yankees’ game on TV rather than “a baseball game played by a team from the Bronx bedecked in pinstriped uniforms,” so long as I’m not saying or implying that the Yankees sponsored the event or go completely overboard with logos in my Evite (which is, naturally, a trademark of its own). And, of course, news outlets and commentators (like this blog!) can legally use the phrase “Super Bowl” when referencing the “Magnificent Melee.”
As mentioned earlier, the NFL is known for its diligence in sending out cease and desist letters to just about anyone who dares use any of its trademarks without permission, even churches and Mom and Pop businesses. Why? Selling official sponsorships is a huge part of the NFL’s business. Apple Music, for example, pays $50 million per year to be the official sponsor of the Super Bowl halftime show; other official Super Bowl sponsors have included big names like Verizon, Anheuser-Busch, and McDonalds. In theory, if the NFL let Vito’s Pizzeria on Main Street in Racine get away with advertising its “Super Bowl Stuffed Crust Special” without permission, it would devalue these huge money partnerships.
What’s more, if companies don’t police the use of their trademarks, they can lose them if they are so widely used as to become generic. For example, “aspirin” used to be a trademark but because Bayer didn’t work to prevent its use as a generic word for pain reliever, Bayer lost its trademark protection. Since the NFL intercepts violations so aggressively, no one can try using “Super Bowl” and then argue in court that the phrase has been allowed to become generic.
The NFL is also probably so combative because it can be. Quite frankly, if the bar down the street gets a cease and desist letter from the NFL, it’s just going to stop using whatever trademarks are at issue and say sorry. Who would have the balls to go up against one of America’s richest and most powerful institutions and its army of lawyers? (If you do own that bar and you’re up for a fight, call me! I’m here for it.)
All that said, there are some instances indicating that in light of, at very least, nominative fair use, the NFL’s rights might not be as broad as it has pretty consistently maintained. For example, in the show Ballers, HBO extensively used NFL team names and logos without the NFL’s consent and, as far as I know, the NFL never sent a cease and desist or sued HBO. The same is true of a 2015 film called Concussion. Maybe because the league didn’t want to draw attention to these high-profile media properties and their focus on the darker side of football (like chronic traumatic encephalopathy)? Or maybe because they didn’t want to go up against an opposing party where they might lose, thus creating a negative precedent.
With tens of billions of dollars in revenue generated every year, the NFL has the resources to be exceedingly — even excessively — diligent in its pursuit of maintaining an elite brand. Its profits are enormous and ever-increasing, and their strategy is seemingly successful, but of course, one has to wonder if the danger of being known as an entity that uses its power against the bar down the street or a local church, is really a winning PR strategy in the long term.
In the meantime, bring on Bad Bunny and, maybe, a Superb Owl party?
December 2, 2025
By Laura Trachtman
I really love being a litigator. I love the challenge, the intensity, the stamped copy of a document signed by a judge saying, “Oh no, she is absolutely right.” But not everyone feels that way. Litigation is all-consuming in terms of time, money, and energy. So why litigate?
Here is the caveat: Many of you know that I was raised by a litigator, my late, lamented father, Alan Trachtman. The story of the birth of my career as a litigator goes like this: The whole family was at my grandparents’ place out on Long Island to celebrate a holiday. My big brother, David, allegedly engaged in some conduct that displeased my parents. He was warned to stop once, then twice. After a third warning, he was sent to his room as a punishment for disobedience. At the ripe old age of two, I said to my parents, “David shouldn’t be sent to his room. He is a good boy. He didn’t understand that what he was doing was wrong, and even if he did, he’ll never, ever do it again.” My father, Chief of the Supreme Court Bureau in the Kings County District Attorney’s Office at the time, turned to my mother and said, “She just argued that case better than half of my assistants.” Accordingly, he trained me from a young age to cultivate this particular predilection by fabricating the following rules for my childhood: “If you want something, tell me why. If you throw a tantrum, you’ll never get it.” “Get good grades and I’ll reward you.” And finally, “You can be anything you want after you go to law school, [which later changed to “after you pass the bar” and then to “after you get admitted to practice].”. So obviously, this is the only life I have known and I adore it.
Not everyone was raised by Alan Trachtman, however, so it helps to explain how I approach the topic of litigation in discussions with my clients. The first thing I say is that “in litigation, the only people who win are the attorneys.” And generally speaking, this is true: We get paid regularly or we leave the case, while the parties need to wait for either a judgment or a settlement to get paid. And even then, the relief they fought for is not always guaranteed. However, litigation is sometimes what a client needs, for whatever reason. I want to do the best job possible for my own sake if not for my client’s, and that entails navigating three distinct areas: litigating effectively, litigating through uncertainty, and handling aggressiveness in litigation.
How do I litigate effectively? Honestly, it basically comes down to paying attention. I have had maybe two motions to dismiss granted on complaints that I have authored in my entire career, because properly pleading is not hard, it is just time-consuming. The most important part of litigating is having the discipline not to rush, no matter how much you may want to. You need to take your time to ensure that you are doing everything correctly. This has been a struggle for me (I am sure you are clutching your pearls right now as I admit to impulsivity and lack of patience). But as I grow older, it becomes easier to be patient.
How do I deal with the uncertainty of litigation? When a client asks me a question and I am not sure about the answer, I use three simple words: “I don’t know.” It is amazing how freeing it is to simply admit lack of knowledge instead of bluffing and possibly getting yourself into trouble. I used to hate admitting that I did not know something; I felt like a failure. But as I tell the children in my life, it is okay to admit that you just don’t know. The important part is knowing how to get the answer. So, when a potential client wants me to take on a case that is not necessarily in my wheelhouse, I tell them upfront that this is not an area I know already, but I can either get myself up to speed or make a referral to another attorney.
How do I deal with the aggressiveness of litigation? This is where my lifelong legal training comes in. It helps that I have a naturally aggressive disposition (and again, I’ll pause for you to clutch your pearls). But as my mother always said: “Not every fight is a fight to the death.” Again, as I grew older, I learned that her wisdom is valid. While I am happy eviscerating opposing counsel, one catches more flies with honey than with vinegar, and so I always try to start with a cooperative approach. Once I have good cause to go for the jugular, I’ll avail myself of the opportunity, but until then, I remain civil. This has helped my clients on more occasions that I can count. This has also helped me: It takes more effort to point out the errors of others in excruciating detail than it does to communicate diplomatically. So by not constantly taking someone’s head off, I get to conserve my energy and foster a more positive exchange. It is a win-win.
All of that to one side, litigation is exhausting, even for someone like me who loves it. At some point, I am going to have to decide whether I want to continue down this path or switch to a less impactful form of practice. Luckily, that day is not today. And if you’ll excuse me, I have to go gleefully explain to a judge how opposing counsel is totally and utterly wrong.
November 25, 2025
By Emily Poler
I suppose, in some way, you have to admire rapper Drake’s tenacity in pursuing his defamation lawsuit against media giant UMG Recordings, Inc., which has kept his nemesis Kendrick Lamar’s accusations of Drake being a pedophile in the public eye a year after most people have forgotten about it. Clearly he’s putting what he perceives as justice over his public image. Plus, it’s making for some interesting legal analysis, as evidenced by the recent decision in the case. As a result, I get to once again write about hip-hop diss tracks in a semi-academic tone. I love my life!
You can go back and read my prior post about the case here, but for a quick summary, between April 19, 2024 and May 5, 2024, Aubrey Drake (“Drake”) and Kendrick Lamar (“Kendrick”) dropped a combined nine diss tracks directed at each other. (Diss track: “A hip hop or rap recording intended to disparage or attack another person or group.”) In this robust exchange of ideas, Drake mocked Kendrick’s height (he’s about 5’5”; Drake claims to be six foot) and implied that Kendrick physically abused his partner. In return, Kendrick accused Drake of being a deadbeat dad, among other malefactions such as having his prominent abs manufactured through plastic surgery.
Most notably, however, in “Not Like Us,” the penultimate track (and biggest hit) in this musical back-and-forth, Kendrick rapped, “Drake, I hear you like ‘em young,” “tryna strike a chord and it’s probably A minor,” “Certified lover boy? Certified pedophile,” and “your homeboy needs subpoena, that predator move in flocks. That name gotta be registered and placed on neighborhood watch.”
These lyrics formed the basis for Drake’s complaint against UMG — Drake and Kendrick’s record label — which alleged that UMG intentionally published and promoted “Not Like Us” knowing that the song implied Drake was a pedophile, and that this accusation was false and defamatory.
UMG moved to dismiss the defamation claims on grounds that “Not Like Us” did not convey, as a factual matter, that Drake had sex with minors. Last month, U.S. District Court Judge Jeannette Vargas ruled the statements at issue in “Not Like Us” were non-actionable opinions and, in keeping with my earlier prediction, dismissed Drake’s complaint.
How did the Court reach this conclusion? By way of background, the law says only factual statements — not opinion — can serve as a basis for a defamation claim. And it’s the courts that decide whether a statement is one of fact or opinion by evaluating how a person hearing the statement might perceive it. In making that determination, courts consider: (1) whether the statement has a precise meaning; (2) whether a statement can be proven true or false (opinion cannot be proven true or false); and (3) whether the context in which the statement is made signals it as opinion or fact.
In this case, the issue is whether Kendrick’s lyrics in “Not Like Us” conveyed a false factual statement that Drake is a pedophile.
On the third point above, Drake argued that Kendrick’s statements should be viewed in isolation, and not in the context of a song. The Court rejected this, instead focusing on where the statements were made, the statements’ purpose, and the language and tone of the statements. The Court concluded, presumably rather easily, that Kendrick’s statements were made in a diss track, writing “[t]he average listener is not under the impression that a diss track is the product of a thoughtful or disinterested investigation conveying to the public fact-checked, verifiable content.”
Which is a rather fancy way of saying, SRSLY?
The Court also noted that the statements, which were part of an exchange of diss tracks, had to be considered in that context. Here, that means a reasonable person would understand the statements at issue were made in a heated dispute or a war of words to be opinion and, therefore, such statements could not be defamatory. In this context, an audience would expect hyperbole, not factual assertions. (This seems particularly true as in an earlier track, Drake challenged Kendrick to accuse him of being a pedophile.)
Drake, however, argued that the Court should ignore the overall battle context and analyze “Not Like Us” on its own, claiming that since “Not like Us” was by far the most popular song in the melee, the average listener wouldn’t be familiar with the whole back and forth and thus wouldn’t view its statements as part of a heated dispute. The Court rejected this argument, finding the statements must be viewed in context because all the songs are in conversation with one another. The Court also noted that “Not Like Us” became a massive hit because of the feud, and the extensive reporting about the conflict would have alerted listeners to the context of the statements.
What’s more, the Court found that the tone and language in “Not Like Us” reinforced the conclusion that it is non-actionable opinion, writing that the track is “replete with profanity, trash talking, threats of violence, and figurative and hyperbolic language, all of which are indicia of opinion.”
In other words, it’s a rap battle, dammit, not journalism.
Drake, unwilling to put this thing to bed and let everyone forget about it, has filed a notice of appeal. The battle rages, or at least sputters, on.
November 18, 2025
By Laura Trachtman
When a new client approaches me for help with a discrimination matter, the first question I ask is where they, or their employer, is located. I do this for two reasons: One, I need to ensure that I can actually represent the client (for example, I am not barred in Washington, DC, so I cannot help people who live/work there) and two, if I can represent the client, I need to pinpoint which laws are applicable to their specific situation. In general, three laws are available to New York residents: the federal, state, and city statutes. Let’s examine the pros and cons of each one.
Title VII
A client can sue under multiple federal statutes: Title VII (discrimination based on race, color, religion, sex, and national origin), the Americans with Disabilities Act (discrimination based on disability), the Age Discrimination in Employment Act (discrimination based on age), and the Equal Pay Act (wage discrimination based on sex).
Title VII is the most stringent of the anti-discrimination laws in terms of requirements. It is the only statute of the three which demands a procedural prerequisite: An employee must file a claim with the Equal Employment Opportunity Commission within 180 days of a qualifying event. The EEOC then sends a notice of the charge to the employer. Once the employer responds and the EEOC conducts an investigation, one of three events will occur: If the EEOC is unable to determine whether the law may have been violated, the EEOC will send the employee a Notice of Right to Sue. If the EEOC determines that the law may have been violated, the EEOC will attempt to negotiate a voluntary resolution with the employer. If no resolution can be reached, and the EEOC (or the Department of Justice) determines that they will not bring a case, it will send the employee a Notice of Right to Sue. The last scenario, where the EEOC determines that the law may have been violated and thus they should file suit on the employee’s behalf, almost never affects private practitioners, obviously, as the feds have taken the case.
The Notice of Right to Sue is vital in any case where Title VII is asserted. Without a Notice of Right to Sue, the client is prohibited from bringing a cause of action grounded in Title VII, except in two cases: actions brought pursuant to the Age Discrimination in Employment Act and the Equal Pay Act.
Finally, bringing a lawsuit pursuant to Title VII requires that the discrimination be “severe and pervasive.” This standard makes demonstrating liability extremely difficult. For example, a single act (such as grabbing someone’s private parts) can be severe and pervasive as a matter of law, but in most situations nowadays, it’s almost impossible to demonstrate severe and pervasive discrimination. This is because most bigotry these days is insidious, not blatant: I rarely encounter situations where a boss will slap his secretary on the rear end, or a manager will refer to his Black employee as the N-word. This societal shift makes demonstrating severe and pervasive very challenging.
Under Title VII, compensatory and punitive damages are capped based on the size of the employer: With 15 to 100 employees, the cap is $50,000; with 101 to 200 employees, the cap is $100,000; with 201 to 500 employees, the cap is $200,000, and with more than 501 employees, the cap is $300,000. Luckily for the employee, this cap does not apply to backpay, frontpay, or interest thereon, so the total recovery is not capped, assuming one has sufficient backpay/frontpay to make a difference, which isn’t always the case if someone is earning minimum wage.
As a federal agency, the jurisdiction of the EEOC covers the entire United States, which is its biggest benefit, although most States also boast a State law that mirrors Title VII. A claim under Title VII is a federal question, and thus a lawsuit under Title VII should be brought in the federal courts. The main issue with Title VII right now is that due to President Trump’s January 2025 Executive Orders, the EEOC is not prosecuting cases brought by transgendered individuals. You can see my three previous posts on that EO here, here, and here.
New York State Human Rights Law
The New York State Human Rights Law is codified as Executive Law § 296, and was originally passed in 1945 as the Law Against Discrimination – the first of its kind amongst the states. Like many state statutes, the NYSHRL was eventually patterned upon Title VII, and thus required that the discrimination be severe and pervasive to establish liability. However, former Governor Andrew Cuomo, in an amazing move for a man who later left office due to allegations of sexual harassment, changed the NYSHRL in 2019 to be patterned upon the New York City Human Rights Law (more on that below). With a stroke of the pen, it became easier to demonstrate liability for discrimination; determining whether the discrimination is severe and pervasive is reserved for the assessment of damages. And unlike Title VII, there is no cap on damages.
The NYSHRL has two other big advantages over Title VII: One, there is no procedural prerequisite to filing a lawsuit in state court. In other words, an employee need not first file a claim with the New York State Division of Human Rights, which is the state division created by the NYSHRL, to be able to sue their employer in court. Two, the NYSHRL created the State Division of Human Rights, which is endowed with the power to eliminate and prevent discrimination.
In practical terms, this means that if an employee does not want to file a case in the Supreme Court of the State of New York, they can file with the State Division of Human Rights itself, which conducts its own investigation into the allegations. This obviates the need for an employee to hire an attorney to file a complaint on their behalf. At the same time, the Division of Human Rights is cognizant that many people still want an attorney, and this agency will work with the employee’s attorney to complete their investigation into the employee’s allegations.
As a state agency, the jurisdiction of the Division of Human Rights’ jurisdiction covers the State of New York. Cases brought under NYSHRL are brought in the state courts.
New York City Human Rights Law
The third law applicable to New York City residents is the New York City Human Rights Law, which is codified as Administrative Code § 8-107. This one is my personal favorite.
Originally passed in 1965, NYC’s first Black mayor, David Dinkins, signed a 1991 amendment into law to ensure that the NYCHRL was construed independently from similarly worded provisions of state and federal law. In speaking at the bill signing, Mayor Dinkins stated that the bill gives NYC the most progressive human rights law in the nation and reaffirms New York’s traditional leadership in civil rights. To that end, and to establish liability for discrimination pursuant to the NYCHRL, an employee must only demonstrate that they have been treated differently based on protected characteristics. This is crucial, as most times (as I discussed above) discrimination is insidious and not blatant, and so demonstrating that an employee has been treated differently is significantly easier.
The NYCHRL created an agency to investigate allegations of discrimination; and no procedural prerequisite is required to file a lawsuit grounded in the NYCHRL in the New York State Supreme Court, and like the post-2019 NYSHRL, the issue of whether the discrimination is severe and pervasive is reserved for damages. Furthermore, there is also no cap on damages. Note that the jurisdiction of the NYCHRL is limited to acts within NYC or tied to NYC, and cases brought under NYCHRL are filed in the state courts.
In conclusion, while there are three viable statutes which offer relief for claims of discrimination, it is easiest to prove discrimination under either the NYCHRL or the NYSHRL. An employee can bring causes of action grounded in both city and state statutes in the federal courts alongside a Title VII claim (should the action be filed in the EDNY or SDNY), but should the federal judge dismiss the Title VII cause of action, then the judge will likely remand the case to the state courts for lack of federal jurisdiction. For that reason and others, I prefer to bring cases in the state courts under the NYCHRL and/or the NYSHRL.
November 11, 2025
By Emily Poler
In a recent post, I talked about how I dislike conflict despite working in a profession built on adversarial relationships — and how I’ve learned to manage obnoxious opponents on my own terms. Doing that well is a super important skill. You know what skill is equally valuable for us litigators (and really, everyone)? Effectively dealing with things that feel hard or uncomfortable to do and that, as a result, we procrastinate over, ultimately making them even harder to accomplish.
It’s a topic that doesn’t get a whole lot of attention and is certainly not taught in law school, which is really about legal theories, statutes, and precedents. Of course, after graduation you can take courses to learn how to write a good brief, handle a difficult witness, or trawl the darkest depths of the Federal Rules of Evidence, but there’s very little institutional knowledge about how to handle the non-legal tasks, like managing nervous clients or promoting your own firm, that don’t come easily — and, for everyone, there’s always something that doesn’t come easily.
(Side note: While I haven’t been able to find any recent statistics, there have been studies suggesting that alcoholism is pretty common in the legal profession. It’s not crazy to speculate that there’s some causal relationship between the lack of training about how to manage the stressful aspects of being a lawyer and heavy drinking.)
Ok, so boozing aside (which I don’t do), what are the techniques I’ve learned to help me when I have to do something, whether as a lawyer or business owner, where I don’t feel comfortable? It comes down to two steps: Identifying the problem, and then determining its source.
The first step is critical because I can’t deal with headaches that I haven’t identified. The difficulty I had producing this blog is a perfect example. Before I started regularly writing this blog, I spent a long time wanting to do it. I had mental plans to do it. Plenty of good intentions. I just didn’t get started. Every morning I would come into the office believing that day was going to be the day, and everyday I would skulk home under a cloud of failure. Facing what was making me avoid this task was a crucial part of doing it.
More recently, I’ve implemented a strategy to avoid this problem, or at least minimize it. Pretty much the first thing every morning I write out, by hand, a list of what I want to get done that day, copying items from the previous day (or days) that I haven’t yet completed. For whatever reason, writing this by hand seems to be the key for me to focus and internalize information.
Obviously, there are days where things don’t get done because I’m on a deadline on another matter or in court. However, this list lets me see the things that have carried over for a couple days (or, sometimes more, more!) and ask myself why I haven’t completed those tasks. Is it because there’s something about the work that feels hard or scary? Is it because doing something is going to require a difficult conversation with a client? Is it because it might reveal that I was wrong and might have to change my position?
I can also flip back through my lists to see if there are common factors among the types of projects I tend to avoid.
So, staying with my struggle to start this blog as an example. Once I realized the pattern, I asked myself, why am I not doing it and what’s stopping me? Asking this question, I realized that I didn’t feel comfortable with my writing voice and there was a good dose of imposter syndrome lurking. This let me get some help and figure out ways around the problem. (Thanks Gregg Lieberman.)
So, now that I had a clue about why I was avoiding this particular task, I did it! Why? Because the easiest way to get me to do something is to tell me I can’t do that thing. I love a challenge.
These steps have been incredibly helpful. More than that, I’d say that by repeatedly going through this process and finishing tasks I had avoided, I’ve learned that things I thought were scary or hard weren’t actually scary or hard. And, even more importantly, the results have proved to be a lot more positive than I ever thought they would be.
And with that, I’m off to write something else I’ve been avoiding!
