As many of you know by now, former WWE Superstars Scott Dawson and Dash Wilder (The Revival in WWE) filed a trademark for the phrase “Fear the Revolt”. Some felt that they would be using that as their new tag-team name. Of course, many in the North Carolina wrestling scene were upset about that as there is already a team using that name. Caleb Konley (Mason Burnett) and Zane Riley (Matthew Riley) have been a tag-team for five years, calling themselves The Revolt. Attorney Andrew Gerber, who is representing Konley and Riley, sent a ten-page cease and desist letter to Michael E. Dockins, the attorney representing Cash Wheeler (formerly Dash Wilder) and Dax Harwood (formerly Scott Dawson). The date of the letter was May 10. It said,
“The Revolt are well-known in the independent professional wrestling circuit and are the current PWX World Tag Team Champions. Mr. Burnett and Mr. Riley sell a range of Revolt-branded merchandise including t-shirts, hats, and DVDs, as shown in Exhibit B. The Revolt has been their passion for years and they have literally put their blood and sweat into building The Revolt brand and connecting with their fans.”
It says that Wheeler and Harwood “have recently rebranded themselves as ‘The Revolt’ and have begun using ‘The Revolt’ and ‘Fear The Revolt’ as trademarks in connection with professional wrestling entertainment and associated merchandise.” It goes on to say that Wheeler said under oath that to the best of his knowledge, “no other persons… have the right to use the mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services of such other persons, to cause confusion or mistake, or to deceive.”
The letter says that all four men knew each other. When Konley and Riley found out about the trademark, they “tried to reach out as friends but were rebuffed. Dax and Cash may enjoy playing heels, but this is not the ring. They cannot steal their former friends’ intellectual property without consequence. Their conduct is not only unlawful, it is truly shameless that they would willfully steal a name from those that worked so hard to build it up.”
Under US trademark law, the “senior user” of a trademark “has the exclusive right to use the mark, regardless of whether the mark has been registered.” Since Konley and Riley have been using the name since 2015, they “are the true and exclusive owners of rights in the Revolt name.” The letter asked for a response by May 18 and said that the two could look at other legal options. The letter also includes proof of Dax and Cash using the name, including photos of merchandise and advertising with the name for independent wrestling events and DVD releases.
Dockins’ later sent a response on May 11. Dockins claims that Konley didn’t use the name on social media until it was obvious that the trademark had been applied for, then the two began “social media tirades” about it.
The letter reads: “There are a number of fundamental errors and flaws in not only what your clients have represented to you, but also in the allegations you have levied in your letter. First and foremost while our respective clients were acquaintances with one your clients and aware of his participation in the wrestling business, they are able and willing to testify under oath that they were not aware of and, at worst, have not recollection of ever knowing of your clients’ claimed rights in a REVOLT-inclusive trademark.”
The letter also states that Cash and Dax’s team name will not be the Revolt, but “FTR”, and that will stand for different things at different times.
It adds: “Secondly, our clients do not intend and have never intended to call themselves FEAR THE REVOLT. They have at all times and in every way made it clear that their tag team name would be FTR, and that FTR can and would mean different things depending on their storyline and creative. They are not responsible for and cannot be held responsible for dirt sheets and others incorrectly attributing to them a name other than the name they have chosen, FTR. In fact, when your client reached out to my clients “as friends” to resolve this matter they were informed that the the team name is, was, and will be FTR and not REVOLT or THE REVOLT or FEAR THE REVOLT.”
Dockins said that FTR “respectfully disagree with your presumptive conclusion that use of the mark FEAR THE REVOLT creates a likelihood of confusion with and infringement of the mark THE REVOLT. Before addressing a likelihood of confusion analysis, we must first clear up what your clients claim as their mark. It appears that their use has been inconsistent and different from location to location. Such inconsistent uses could result in a finding that your clients have an unprotectable phantom mark or no rights in any mark whatsoever. In your letter you refer to the mark as THE REVOLT. In the evidence provided the mark is shown as THE REVOLT or REVOLT! or ¡REVOLT! or REVOLT.”
Dockins also said that there have been tag teams with similar names in the history of pro wrestling, citing the Midnight Express and The Rock N’ Roll Express as an example. It also pointed out the use of the word Warrior, such as the Road Warriors and the Ultimate Warrior. He pointed out that those names did not cause market confusion. He said that FTR “can and will continue” to use the phrase ‘Fear the Revolt’ in a “descriptive form”, noting.
He wrote: “The entire purpose behind use of the word “revolt” and “fear the revolt” was a commentary on our clients’ departure from the WWE; they “revolted” against the establishment. As you may know, descriptive fair use permits use of another’s trademark to describe the user’s products or services, rather than as a trademark to indicate the source of the products or services. This usually is appropriate where the trademark concerned has a descriptive meaning in addition to its secondary meaning as a trademark. In this instance, the word “revolt” clearly has a descriptive meaning and may be freely used by our clients or anyone else in the wrestling business.”
He also said that even if a trademark office or court of law ruled there could be market confusion, Zane and Riley’s “best” hope is a concurrent use proceeding, where it could be used in certain states/markets for one team and others for the second team. He noted the situation will cause everyone to “spend considerable amounts of time and money” which will only go up over time. He said FTR had offered to finance the Revolt’s trademark filing and Dockins himself said offered “to waive my fees, inclusive of the cost of a consent agreement, if one is necessary, to prosecute the application to registration. That by itself has a value of a number of thousands of dollars.”