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  • Writer's pictureDavid Baker

Nicklaus wins right to use own name

Just in time for Christmas, a court has ruled that legendary professional golfer Jack Nicklaus can once again use his own name when branding new golf courses he designs and builds.

Strangely enough, golfer Nicklaus had been sued by Nicklaus Companies, the company Jack Nicklaus had originally founded, used for purposes of designing and building Jack Nicklaus-signature golf courses around the world, and then lost control of.

Nicklaus Companies filed suit alleging tortious interference, breach of contract and breach of fiduciary duty while claiming Nicklaus was paid $145 million in 2007 to provide exclusive services and property to the Nicklaus Companies. Further, the suit accused the 18-time major champion of working directly against the company and said Nicklaus had failed to deliver on the terms of the deal struck 15 years ago.

Specifically, one breach of contract mentioned in the suit was Nicklaus' negotiations with the Saudi Arabia Public Investment Fund and the $100 million offer (which Nicklaus declined) from upstart PGA competitor LIV Golf to be its CEO.

However, Judge Sam Greenwood of the New York Supreme Court has ruled Nicklaus can return to his golf course design career on his own and in his own name without breaching the agreement with Nicklaus Companies. Now, he can compete with his former home, Nicklaus Companies, for design work and other business, expect commercial endorsements.

Jack Nicklaus has already formed a competing business by the name of 1-JN, LLC.

"I am looking forward to this next phase in my life where I am again designing golf courses under my own banner and in my own name," Nicklaus said in the statement.

"It has been more than 50 years since my first course, but I am even more passionate than ever about golf course design. I strongly believe that my ideas and creativity are even better now than they have ever been, and I am inspired to continue producing memorable and sustainable golf experiences that can be enjoyed for years to come.

"You might say I have nothing to prove," Nicklaus added, "but I have a lot left to give."

Why It Matters.

At the risk of inadvertently perpetuating a long-held perception (or triggering those susceptible to perceived micro aggressions of a formerly patriarchal society), there was a time not so long ago when a surname was accepted as a relatively strong trademark. Provided that the name was used properly and for a sufficient duration, it could become much more than merely the recognizable name of the founder of a company and instead become a means of identifying the source of specific goods or services.

It’s hard to argue that Ford or Wendy’s is not a strong trademark in the United States or that Guinness or Mercedes-Benz are not very strong means of identifying companies that have become well known for the quality of their vehicles, their food, or their beer (I know that I have enjoyed many a cold glass of the Irish stout). However, tort isn’t easy for a surname to become a protectable trademark, especially these days when there are so many competing companies and every company has to fight not just for market share but also for recognition in the marketplace.

Companies that elect to use a surname as a brand do so at considerable risk or infringement in or being infringed and, once established, must take special care to ensure that they can continue to be used as such. This is especially true when, as Nicklaus discovered the hard way, a contract is lightly entered into assigning away those rights.

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