Although the more nostalgic among us were recently celebrating the announcement of a third film (and sequel) of In a galaxy near you (Dans une galaxie près de chez vous), a sci-fi series on Quebec TV, sports fans might be disappointed if the arena near them ever ends up being renamed. In the first instalment of our series of articles on sports law, we examined various issues surrounding team branding. We would now like to focus on the naming of stadiums, arenas and our favourite sports venues, which often feature corporate names or trademarks. In a press release dated August 15, 2023, the Montreal Canadiens announced that their training centre, previously known as the Bell Sports Complex, would be renamed the CN Sports Complex. The reasons for this change have to do with naming rights agreements. These agreements stem from a “marriage of values” for commercial purposes between two brands that share a number of clearly defined objectives. In this article, we will answer two fundamental questions: how do these agreements work and what are the objectives? Defining a naming rights agreement A naming rights agreement is a contract between a company and an operator or owner of a venue, building, event or facility. Under such agreements, a company obtains the exclusive right to name a venue, building, event or facility by making royalty payments or providing other benefits. This enhances the company’s visibility because its name or brand is now associated with the venue, building, event or facility. In return, the owning or operating entity is paid a royalty that helps to support its activities or boost its profitability. Naming rights agreements are commonly used for naming stadiums, arenas and sporting events. It should be noted that naming rights agreements are different from sponsorship agreements. A sponsorship agreement is another type of arrangement under which a company can obtain visibility associated with an event. For example, the Royal Bank of Canada entered into a sponsorship agreement with the Montreal Canadiens to display its logo on the team’s jerseys. One of the main differences between sponsorship agreements and naming rights agreements is their duration. A sponsorship agreement has a shorter term (usually 3 to 5 years), whereas a naming rights agreement may run from 5 to 20 years, sometimes longer. An ever-growing market Underscoring the importance of naming rights agreements, over 90% of the teams in North America’s five largest professional sports leagues have signed one: In Europe, the most popular sport by far is soccer. The status of naming rights agreements in European soccer is not comparable to the North American situation, but everything indicates that their popularity will continue to rise in the coming years: What are the primary objectives of naming rights agreements? Although most North American sports teams have entered into naming rights agreements, the frequency with which stadiums or sports venues are renamed remains low due to the long-term nature of these arrangements. Companies are prepared to invest considerable sums in these agreements. There are various reasons for this, including the desire to partner with an organization that shares certain values, or to reap the benefits of a unique financial tool, or to consolidate business interests or gain a foothold in a given market. In 2017, the Air Canada Centre, which hosts the Toronto Maple Leafs (NHL) as well as the Toronto Raptors (NBA), was renamed the Scotiabank Arena. Under this agreement, Scotiabank will reportedly pay $40 million annually over 20 years to maintain the new name. At the time, this was a record amount. But the new (publicly disclosed) record is now held by the Crypto.com Arena, formerly known as the Staples Center, home to two NBA teams (LA Lakers and LA Clippers), together with the LA Kings (NHL). In 2021, Crypto.com agreed to pay approximately $50 million annually for 20 years. In addition to the recent CN Sports Complex name change, Uniprix Stadium,which hosts the Omnium National Bank tennis tournament, became IGA Stadium back in 2018. When the IGA Stadium agreement was concluded, Eugène Lapierre, Senior Vice-President at Tennis Canada, offered this assessment: “IGA attaches a good deal of importance to healthy eating, while for our part, we’re working hard to develop tennis in Canada. Our objectives are in sync.”1 Similarly, France Margaret Bélanger, President, Sports and Entertainment of Groupe CH, confirmed this marriage of values between the Montreal Canadiens and CN: “CN is not only a world leader in transportation, but also an iconic Canadian company which, like the Canadiens, has been based in Montreal for over a century.”2 It is clear that these companies were carefully selected on the basis of “common ground”, which implies a sharing of values between them and the operators of the IGA Stadium and the CN Sports Complex. Choosing the right partner: a key strategic issue Choosing the right company whose name or brand will be publicly displayed is essential. An owner or operator will want to avoid any association with a company whose identity is incompatible or whose values are not in alignment. Several examples of dubious partnership choices spring to mind: The Chicago White Sox’s baseball stadium changed its name from U.S. Cellular Field to Guaranteed Rate Field in 2016. This change sparked controversy, drawing ridicule from the public. The problem was that the White Sox are a high-profile brand, known throughout the sports world and enjoying immense prestige. In contrast, Guaranteed Rate was a local company, unknown to many baseball fans, and was simply unable to bear the weight of a storied franchise such as the White Sox. The social networks lit up at the time, adding to Guaranteed Rate’s visibility. The company certainly achieved its objective of “getting its name out there”! Away from the sports realm, another relevant example is the Toronto Transit Commission (TTC), which operates that city’s mass transit system. In April 2023, the TTC announced that it wanted to look into the possibility of selling the rights to name train or subway stations – an idea that it had initially announced in 2011. The outcry was immediate: “This will turn the TTC into a joke”, said Rami Tabello, a representative of the Toronto Public Space Initiative. “It's going to turn our civic identity and put a price tag on it. We need to say that our city is not for sale.”3 Just imagine the conductor’s announcement: “Next stop, Pepsi Station”! Structuring a naming rights agreement Although the parties to naming rights agreements are free to negotiate their own terms and conditions, certain provisions should be included to ensure a good long-term relationship. A naming rights agreement should be comprehensive and detailed enough to enable both parties to “uncouple” quickly and easily if a disturbing or controversial event occurs that could have an adverse impact on their brand image or reputation. As a general rule, such agreements include a termination clause in case one party defaults or is in breach of contract. It is therefore important to clearly identify what constitutes a default or a breach of contract. Along with the digital boards, certain spaces on the ice of hockey rinks or advertising on helmets, crests or jerseys, the rights stemming from a naming agreement are valuable assets that can be monetized by means of various financial instruments. Not only can these agreements be monetized as soon as they are signed, but they can also be transferred for a consideration to a third party, such as an alternative investor. Hence the importance of ensuring that naming rights agreements are flexible and transferable, thereby facilitating third-party transfers and monetization. As an additional type of financial instrument, naming rights agreements provide immediate access to cash flows. Intellectual property and trademark rights: what precautions should be taken? Naming rights agreements often facilitate the creation of new intellectual property linked to the joint use of brands. According to trademark law, the owner of a brand must, and is generally assumed to, exercise control over the products and services associated with the brand. In addition, when a new form of use extends to new services stemming from a naming rights agreement, it is advisable to verify whether the brand’s trademarking is sufficient or should be extended. Here is another point to consider: when the naming rights agreement expires, the chosen partner must not have permanently acquired rights to the brand. These agreements, therefore, must carefully circumscribe property rights as well as the terms and conditions governing intellectual property. It is also important to outline the civil liability arising from use of the brand. Considerations include compensating the brand owner for the partner’s use of the brand and, conversely, compensating the partner in the event that the brand infringes third-party-owned intellectual property. In any event, the brand owner cannot stand idly by if the user goes beyond what is permitted in the agreement (this would amount to breach of contract). North America and Europe: two different realities Naming rights agreements generate significant revenues for sports teams. A team unable to find the right partner may find itself at a disadvantage vis-à-vis other competitors in its league or even compared to other sports. This is the daunting reality facing a number of European soccer clubs, which are having a harder time finding partner companies for naming rights agreements than sports teams are in North America. One British example involves London-based Tottenham Hotspur, which has been unable to find a co-contractor to enter into a naming rights agreement for its new stadium since 2019. The team is now in serious financial difficulty and is attempting to host events other than soccer (concerts, boxing, NFL games, etc.) to make up for its revenue shortfall. In Europe, naming rights agreements are not as widespread as they are in North America. This is primarily due to the fans’ reaction. In Europe, soccer boasts a tradition-steeped history: fans tend to be opposed to change or to the idea of “selling” an iconic stadium to a company. On the other side of the Atlantic, marketing icons are often linked to companies that have signed naming rights agreements. To understand this phenomenon, consider the city of Pittsburgh and the Steelers’ football stadium, which was named Heinz Field for over 20 years under an agreement involving (unsurprisingly) the Heinz company. The stadium was also home to two gigantic Heinz ketchup bottles mounted atop the scoreboard: Image 1: Heinz ketchup bottles atop the Heinz Field scoreboard. The Heinz agreement expired and the facility was renamed Acrisure Stadium in July 2022; the ketchup bottles were removed. Steelers fans were soon calling for the ketchup bottles to be brought back—in their eyes, the gigantic bottles were an emblem of the team. Art Rooney II, the team’s legendary owner, acceded to the fans’ demands earlier this year: one of the bottles was reinstalled above a gate outside the stadium. Image 2: Some fans were outraged when the Heinz ketchup bottles were removed from Acrisure Stadium. Image 3: One of the ketchup bottles was reinstalled above Gate C outside the stadium. It should be noted that the Heinz company was founded in Pittsburgh in 1869 by Henry J. Heinz; it is still headquartered there. In Pittsburgh, the Heinz family is both emblematic and iconic. For local residents, Heinz is much more than a brand of ketchup or a food processing company: it is a key part of their history and culture, interwoven with the social fabric. The Heinz ketchup bottles towering over the football stadium were not just a marketing ploy; they were also a cherished symbol for the community and the city of Pittsburgh. Conclusion Unbeknownst to many of us, the impacts of naming rights agreements can be felt discreetly in our day-to-day lives. In addition to being a vehicle for conveying emotions and exerting an influence on our experience of certain events and places, these agreements drive our emotional attachment to certain sports properties. Pierre Durocher, Le stadium Jarry change de nom, Le Journal de Montréal, April 16, 2018 (https://www.journaldemontreal.com/2018/04/16/le-stadium-uniprix-devient-le-stadium-iga). Montreal Canadiens, Montreal Canadiens' practice facility to be named CN Sports Complex, media release, August 15, 2023 (https://www.nhl.com/canadiens/news/montreal-canadiens-practice-facility-to-be-named-cn-sports-complex-345595466). CBC News, TTC deal opens door to station naming rights, July 6, 2011 (https://www.cbc.ca/news/canada/toronto/ttc-deal-opens-door-to-station-naming-rights-1.1023460).
Sébastien Vézina Partner, Lawyer
- Québec, 1999
- Ontario, 2023
Sébastien Vézina is a partner in the firm’s Business Law group.
Sébastien’s expertise lies in his exemplary ability to negotiate complex commercial agreements, in accordance with the highest standards of the legal industry. Recognized by the clients for his strong interpersonal skills, keen business sense and availability, he always adapts his strategic and legal advice to the business reality of the companies and organizations he works with.
Sébastien’s desire to develop a comprehensive and diversified practice has led him to represent companies in a variety of industries.
Over the years, he has refined his practice and developed a particular interest in negotiating commercial agreements with companies in the mining and renewable energy sources, financial services and sports and entertainment industries.
Generally, Sébastien’s practice in these different industries includes public and private mergers and acquisitions, public and private financing, private sector investments and company buyouts, in particular cross-border transactions between Canada and the United States and international transactions, and the negotiation of various commercial agreements. He holds degrees in both civil law and common law.
Sébastien also represents boards of directors and independent committees of boards of directors and sits on the board of a number of private corporations. In addition, he is involved in charitable, community and sports organizations and associations.
He is recommended by legal directories identifying leaders in Canada, such as the Canadian Legal Lexpert Directory since 2014, Chambers Canada since 2020 and The Best Lawyers in Canada since 2021.
Sébastien represents a number of corporations along with various private equity funds and institutional investment firms in Canada and the United States.
He acts as legal counsel and special advisor to corporate, institutional, private and governmental sector clients, representing them in their private and public business transactions, both nationally and internationally. His approach and legal skills are invaluable in the negotiation, structuring and implementation of acquisitions, divestitures, mergers, consortiums, corporate financing (including cross-border financing), refinancing, syndication, debt restructuring, corporate reorganization and arrangement plans.
Sébastien has extensive experience in managing large-scale projects that require a large workforce and an interdisciplinary approach involving various industries and multiple jurisdictions.
Securities | Mining, Natural Resources and Renewable Energy Sources
Sébastien practises in securities law with a focus on mining and natural resource corporations. He provides advice on business consortiums, hostile takeover bids and proxy contests, corporate, partnership and revenue-based financings, including metal production and royalty sales transactions, as well as on issues related to infrastructure, transportation, energy and social acceptability. He is involved at every stage of the mining cycle, from exploration and project development to extraction and mine closures.
He has acquired solid experience with local and foreign investors as part of the Plan Nord aimed at the economic development of northern Quebec. He advises boards of directors and special committees on securities law compliance, corporate governance and related-party transactions. In addition, he is the corporate secretary for a number of public companies.
Sports and Entertainment
Sébastien’s sports and entertainment law practice focuses on sports franchise investments and acquisitions, sports facility management, commercial transactions, team-related transactions, intellectual property protection and enforcement of the applicable laws in this matter, the staging and operation of live sports and other events, public and media affairs and other types of professional sports-related projects.
He provides business and regulatory advice to sports teams, players, agents, owners, senior managers, sponsors, agencies, event promoters, team members, athletes and emerging digital businesses of all kinds. Over the years, he has gained experience in the development and financing of sports properties and commercial sports projects, as well as in corporate transactions and mergers and acquisitions involving Canadian and American sports leagues and clubs.
In addition, Sébastien is particularly interested in sports talent. He negotiates and drafts contracts entered into with key sports managers and contracts for other sports personnel, as well as contracts promoting his clients’ talents (including on-air talent and, in particular, former athletes, sports journalists and sports managers). He also helps his clients gain visibility, promote themselves and participate in conferences.
Finally, Sébastien is able to provide advice to sports organisations and associations that are subject to investigations pertaining to behavior or resulting from whistleblower complaints. He is also able to conduct investigations and prepare independent investigation reports into all forms of alleged misconduct, and issue recommendations.
- Representation of Aspen Skiing Company, LLC and KSL Capital Partners LLC in connection with the acquisition of Intrawest Resorts Holdings, LLC, an operator of ski resorts and recreational centres
- Representation of an established private equity firm in the United States in connection with the acquisition of Pretium Holding, LLC, a manufacturer of rigid packaging products, and the secured debt financing related to the acquisition
- Representation of Globe Specialty Metals Inc. for the completion of the acquisition of certain assets of Bécancour Silicon Inc. and the revolving credit facility
Securities | Mining, Natural Resources and Renewable Energy Sources
- Representation of Stornoway Diamond Corporation in connection with the preparation and negotiation of financing agreements with the Quebec Government under which Stornoway has participated in the construction and maintenance costs of a highway extension
- Representation of Hecla Mining Company in connection with an arrangement plan with Aurizon Mining Ltd. under which Hecla has acquired all issued and outstanding shares of Aurizon
- Representation of a consortium led by Magris Resources inc. in connection with the completion and financing of the acquisition of Niobec Inc., a subsidiary of IAMGOLD Corporation and one of the three major producers of niobium in the world
- Representation of Sodemex Développement s.e.c. in connection with the acquisition of an interest in a portfolio of mining royalties
- Representation of Canadian Royalties Inc. with respect to its commercial and corporate activities, including the preparation of its impact and benefits agreement as well as its prospectus offering of more than $212 million
- Representation of Geomega Resources inc. in a series of equity and debt financing related to the development of its rare earth elements/niobium Montviel project
- Representation of Oceanic Iron Ore Corp. in connection with various financings and commercial agreements for the purpose of developing its iron ore deposit of the Ungava Bay in Nunavik
- Representation of institutional venture capital funds in Quebec, such as Société de développement de la Baie-James and Fonds régional de solidarité FTQ
- Representation of Marc Bergevin in connection with his appointment as Executive Vice President and General Manager of the Montreal Canadiens hockey club
- Representation of sports coaches in connection with their nomination as head coach or assistant coach of professional hockey clubs, such as Guy Boucher, Jacques Martin and Martin Raymond
- Representation of a group led by the Molson brothers in connection with the acquisition of the Montreal Canadiens hockey club
- Representation of hockey promoters in connection with the acquisition of a potential National Hockey League (NHL) hockey club
- Representation of Pat Brisson and JP Barry, two leading hockey player agents, in connection with the acquisition of IMG’s hockey players’ representation business and the negotiation of a strategic partnership arrangement with Creative Artists Agency (CAA)
- Representation of Luc Robitaille, President of the Los Angeles Kings hockey club, in connection with speaking engagements
- Representation of Los Angeles Kings Hockey Club, L.P. and AEG Facilities Canada ULC in connection with their respective registration with the Registry of Lobbyists
Junior Hockey and M18 AAA
- Representation of the Quebec Major Junior Hockey League in connection with updating its legal structure and governance, including creating and organizing a new entity under the Canada Not-for-profit Corporations Act, reviewing its governance structure and drafting its new constitution and regulations
- Representation of the Ligue de développement du hockey M18 AAA du Québec in connection with updating its legal structure and governance, reviewing its governance structure and updating its constitution and regulations
- Representation of Benoît Robert and his partners in the sale of American Hockey Group, LLC (AHG), the operating company of the Omaha Lancers hockey club of the United States Hockey League (USHL), pursuant to which all of the membership interests of AHG were sold to Crossbar Down, LLC, a Nebraska company
- Representation of Daniel Brière in connection with the acquisition of an interest in the capital of the Blainville-Boisbriand Armada hockey club, a member of the Quebec Major Junior Hockey League
- Representation of a lender in connection with a corporate loan granted to the Val-d’Or Foreurs hockey club, a member of the Quebec Major Junior Hockey League
- Representation of a group of investors comprised on sportscasters and current and ex-NHLers for a contemplated acquisition and relocation of a Quebec Major Junior Hockey League hockey club
- Representation of the Quebec Major Junior Hockey League as an independent arbitrator
- Representation of a group of investors in connection with the acquisition of the Montreal Alouettes football club of the Canadian Football League (CFL)
- Representation of Groupe Yvon Michel Inc. (GYM) in connection with permitting procedures and exhibitions of boxing events in multifunctional arenas and casinos
- Representation of Groupe Yvon Michel Inc. (GYM) in connection with a series of promotional agreements with Top Rank, Inc. and Matchroom Boxing Limited, boxing promotion companies affiliated with the American sports television channel ESPN and the online streaming service DAZN, in order to co-promote multiple fights
Brand, Publicity and Sponsorship
- Representation of track and field and Olympian athlete Bruny Surin in connection with endorsement engagements, management of trademark portfolio and sponsorship representation arrangements
- Representation of track and field and Olympian athlete Bruny Surin in connection with a lawsuit against Puma North America Inc. and Puma Canada Inc. for illegal use of trademarks and brand image
- Representation of diver and Olympian athlete Jennifer Abel in connection with her endorsement engagements and sponsorship representation arrangements
- Representation of a leading sponsor of the Canadian Football League (CFL) in connection with the negotiation of a sponsorship agreement
- Representation of the sports agency Spring Management Inc. in connection with its business and strategic matters
- Representation of the ad hoc committee of first lien lenders to Cirque du Soleil in connection with the acquisition of Cirque du Soleil pursuant to a credit bid under the Companies’ Creditors Arrangement Act for $1.2 billion
- Representation of the independent kids’ content company DHX Media Ltd. in connection with its corporate fundraising activities
- Representation of 01 Studio Inc. in the negotiation of an equity financing and license and distribution agreement for a video game in China and in the Asia-Pacific region with Skymoons Technology Inc. and its affiliates
- Representation of luxury goods online retailer Attalah Group Inc. (doing business under the name SSense) in connection with services regarding a work production and licensing arrangements
- Representation of Les Productions O’Gleman Diaz inc. in connection with the broadcasting, publishing and licensing of its flagship TV program, magazines and books entitled « Cuisine futée, parents pressés »
- Representation of contemporary visual artist Michel de Broin in connection with a legal claim for copyrights infringement
- Representation of a renowned speaker in connection with the protection of public image, reputation, privacy and defamation recourse
- The Best Lawyers in Canada in the field of Mergers and Acquisitions Law, since 2021
- Chambers Canada in the field of Energy and Natural Resources: Mining, since 2020
- Lexpert Special Edition – Canada’s Leading Energy Lawyers as a leading lawyer in energy law, 2017
- The Canadian Legal LEXPERT® Directory in the field of mining law, since 2014
- LL.B., University of Western Ontario, 1997
- LL.B., Université Laval, 1996
Boards and Professional Affiliations
- Member of the Board of Directors of Technicolor Canada Inc.
- Member of the Board of Directors of Technicolor Home Entertainment Services Canada ULC
- Member of the Board of Directors of the MAD Festival
- Corporate Secretary for AquaAction
- Corporate Secretary for the de Gaspé Beaubien Foundation
- Corporate Secretary for Fancamp Exploration Ltd.
- Corporate Secretary for ImmunoPrecise Antibodies Ltd.
- Member of the Quebec Mineral Exploration Association
- Member of the Prospectors & Developers Association of Canada
- Member of the Sports Lawyers Association
- Member of the Executive Committee of the Yvon Michel Foundation
- Member of the 2022 Memorial Cup Site Selection Committee of the Canadian Hockey League
Choosing the name of a sports team can be a perilous exercise. In addition to representing certain values, names are supposed to fire up the fan base and motivate the athletes themselves. It must sometimes meet with the approval of major sponsors. But when sports teams are companies seeking to profit commercially from the use of their brand, legal considerations also come into play. Team names are typically linked to the organization of sports events for which tickets are sold. They may also be associated with products such as caps or jerseys that fans take pride in wearing. In these respects, the team’s name is a trademark and does not only serves to differentiate a team from its competitors but can also help to fill a company’s coffers. Team names are often associated with logos that also embody certain values. Logos may incorporate various design features, in addition to the team name, and often displayed on a wide range of products. Trademarks in sports has given rise to various problems, as seen in the examples below. Trademark Confusion Do you remember when the Canadian Football League was home to the Saskatchewan Roughriders as well as the Ottawa Rough Riders? This type of situation is far from ideal when watching a game and from the point of view of trademarks, it is to be avoided, since it will probably be impossible for at least one of the two teams to register its trademark. Remember that trademark registrations generally grants national exclusivity. Similar nominal trademarks, however, are quite common among sports teams, particularly when different sports are involved. Examples include the New York Rangers (hockey) and the Texas Rangers (baseball), or the Florida Panthers (hockey) and the Carolina Panthers (football). This form of “nominal coexistence” might prevent one team from registering its trademark, especially if the description of the other team’s products and services is wide-ranging. For instance, if the description of the services provided by the first team to register its trademark includes the presentation of sports events or the sale of jerseys, without specifying the associated sport, there would then be a risk of confusion from the legal point of view between the two nominal trademarks. To register as a design mark which includes both the team’s name and a logo can sometimes resolve this problem if the teams’ logos are substantially different from each other. However, this will be ineffective if the design mark primarily consists of the team’s name. In that case, the Intellectual Property Office will consider the logo along with any accompanying text to assess the likelihood of confusion. A logo that does not include the team’s name is often easier to register, provided that it is different from the logos of other existing teams. The case of teams with the same name playing the same sport in different leagues is more complicated. Such situations often arise with minor league and major league hockey teams that have the same name. No problem arises when the minor league team is owned by the same business interests, since it is then easy to conclude a licensing agreement between the two and consolidate trademark ownership to only one company. On the other hand, such situations might also stem from a random choice of name or an unconscious desire to be associated with a major league team. At the very least, teams with the same name should consider signing a coexistence agreement. For example, on January 10, 2018, the U.S. Army’s parachute team, nicknamed the Golden Knights, filed a notice of opposition with the United States Trademark Trial and Appeal Board (TTAB) calling for the rejection of the trademark registration application filed by the NHL’s Vegas Golden Knights. Both teams ending up signing a coexistence agreement: the risk of confusion between them was perhaps more limited given the very different nature of their activities. In addition, team trademarks should aim to be distinctive and should not be limited to generic descriptions of the sport or the place where the team is based. Socially unacceptable trademarks Although they may be registered and legally valid from an intellectual property perspective, team logos or names may, however, be socially unacceptable. The notion of social acceptability actually evolves over time. Some trademarks that were used for years are no longer acceptable today. (Come to think of it, were they ever?) Take trademarks like Aunt Jemima or Uncle Ben’s, which, following decades of commercial use, were renamed to be less offensive. In the world of sports, one only has to think back to the former Cleveland Indians and their logo featuring “Chief Wahoo”. In the face of social pressure, the team dropped its logo and became the Cleveland Guardians. The same phenomenon has been observed in Canada: The Edmonton Eskimos, of CFL fame, became the Edmonton Elks after the organization acknowledged that its name could be offensive to the Inuit and other Indigenous peoples of Canada. In 2019, McGill University changed the name of its varsity sports teams from the Redmen to the Redbirds. This decision followed a referendum in which 78.8% of participating students voted in favour of the name change. In 2020, the Ahuntsic College Indians became the Eagles following a student vote. To protect their trademarks, sports teams must take into account evolving standards of social acceptability. Trademarks that avoid racial or discriminatory stereotypes are more likely to “stand the test of time”. One might wonder how much longer certain team names will last. In the NFL, the Kansas City Chiefs and the Minnesota Vikings both have names that play on stereotypes that have been contested for years. In the NHL, the same questions arise for the Chicago Blackhawks. While various communities are calling for a new name and logo, others insist that the name pays tribute to a real-life Native American. In Major League Baseball, the Atlanta Braves have faced similar scrutiny and social pressure. Team nicknames created by fans Certain team names were created by the fans themselves, not by the owners or the organizations involved. Take, for example, the “Habs” (Montreal Canadiens), the “Als” (Montreal Alouettes) or “Nos Amours” (former Montreal Expos). Are these nicknames the intellectual property of the fans that invented them? In fact, a number of these nicknames have been successfully trademarked in Canada: “Habs” has been a registered trademark since 2003 for entertainment services and since 2007 for merchandise such as clothing and other promotional items. “Als” has been a registered trademark since 2014 for all promotional items and entertainment services. “Barça”, the nickname of Barcelona’s professional soccer club (officially FC Barcelona), has been a registered trademark in Canada since 2022 for all promotional products. However, the French nicknames “Nos Amours” (Montreal Expos) and “La Sainte-Flanelle” (Montreal Canadiens) have not yet been trademarked in Canada, although applications for “Tricolore Sports” and “Bleu Blanc Rouge” were recently filed by the Montreal Canadiens. The issue that arises stems from sports teams taking the opportunity to trademark and protect nicknames that became distinctive thanks to widespread use by fans. Trademarks linked to a sponsor Sports teams might wish to adopt a name and /or a trademark that pays tribute to their owner or a major sponsor. One example that comes to mind is the Anaheim Mighty Ducks (now the Anaheim Ducks), which were originally named after the Disney-owned film franchise. This situation is not problematic per se since two separate companies were involved. However, things can get tricky if relations with sponsors become tense or if they decide to withdraw their sponsorship. For that reason, an agreement should be in place setting out the sponsor’s trademark rights and, if the sponsorship comes to an end, how quickly the team has to change its name and trademarks. Departing sponsors should also be prevented from interfering in the management of the team. Teams should also reserve the right to change their names and trademarks for various reasons, including reputational risk. And if a sponsor sells sports equipment or other team-related products, teams should ensure that they can sell their own promotional products without infringing the sponsor’s trademark. If not contractually regulated, such situations could even affect the validity of the sponsor’s registered trademarks since the sponsor would not exercise adequate control over the trademark. The issues outlined above might not just affect the company’s image, but could also prevent it from adequately protecting its trademark. A registered trademark ensures nationwide protection; it may also cover multiple countries if applications are filed outside Canada. Above all, trademark registration provides a greater degree of legal certainty. This also greatly facilitates intervention against malicious actors seeking to counterfeit—and profit from—registered trademark and, in many cases, serves to block imports of counterfeit merchandise. From the outset, sports teams that wish to profit commercially from their brand should check at the outset whether it can be registered as a nominal and/or design trademark. If it cannot, they are advised to work closely with their legal teams and trademark agents to find an alternative name or logos that are not affected by the above-mentioned issues.
Last May 2, the Court of Appeal granted a motion to dismiss an appeal against a significant decision in the area of civil liability in the context of the practice of a sport.1 Decision at trial2 The facts in the case date back to October 3, 2010. A few seconds after the start of a hockey game between two junior teams, the plaintiff, Andrew Zaccardo, was violently body checked from behind by the defendant Ludovic Gauvreau-Beaupré, a player on the opposing team. Zaccardo, who became quadriplegic as a result of the incident, brought an action in damages against Gauvreau-Beaupré and his insurer, Chartis, claiming $8 million in damages. We commented this decision in a previous publication.3 At trial, Justice Daniel W. Payette noted that a hockey rink is not [translation] "a law-free zone".4 The Court found that by body checking Zaccardo from behind, Gauvreau-Beaupré had breached the basic rules of care, thereby committing a fault within the meaning of the civil law. In addition, the Superior Court pointed out that while it is true that hockey involves certain inherent risks, Zaccardo could not reasonably have expected to become quadriplegic as a result of an illegal body check. Gauvreau-Beaupré and Chartis, his insurer, were therefore ordered to indemnify Zaccardo for $8 million, which amount had been the subject of an agreement between the parties. Court of Appeal's decision In a short decision, the Court of Appeal dismissed the appeal by Chartis and Gauvreau-Beaupré against the decision at trial, noting that it had no reasonable chance of success, since the trial judge had carefully assessed the evidence in reaching his decision. Moreover, the Court dismissed the argument by Chartis that Gauvreau-Beaupré had committed an intentional fault when he made the body check from behind, stating that [translation] "where the insured is accused of committing an intentional fault, the intention must relate not only to the act committed, but also to the results of that act".5 At trial, Chartis had, moreover, waived the right to invoke this exclusion. Ultimately, the Court of Appeal upheld the award against the insurer to pay the total amount of $8 million in compensation for the injuries suffered by Zaccardo. This amount is certainly one of the highest ever granted by a Canadian court in such a context. Chartis Insurance Company of Canada c. Zaccardo, 2016 QCCA 787 ["decision of the Court of Appeal"]. Zaccardo c. Chartis Insurance Company of Canada, 2016 QCCS 398. Need to Kwow publication, march 2016. Supra note 2, at paragraph 10. Paragraph 5 of the decision of the Court of Appeal.
On February 1, 2016, the Superior Court of Québec rendered a significant decision in the area of civil liability in the context of the practice of a sport1. The judgment was widely reported in the media due, on the one hand, to the importance of the amount granted by the judge (8 million dollars) and, on the other hand, because it is closely related to the practice of the national sport of Canadians. Will this judgment, through which a junior hockey player who became quadriplegic after receiving a check from behind has been allowed such an important amount as compensation, change the rules of the game? The facts The plaintiff, Andrew Zaccardo (hereinafter, “Zaccardo”), who was 16 years old at the time of the events, was a junior amateur hockey player. On October 3, 2010, his life took a turn for the worse when he received a check from behind from another player, defendant Ludovic Gauvreau-Beaupré (hereinafter, “Gauvreau-Beaupré”), who violently hit him from behind. Zaccardo became quadriplegic. The video clip, filed as evidence at the trial, shows a sequence resembling those routinely seen by hockey fans in sports information bulletins (at 0:15 to 0:30 more specifically). Zaccardo instituted civil proceedings against Gauvreau-Beaupré, his insurer, as well as Hockey Québec and Hockey Canada, claiming damages, particularly for the costs and expenses related to the care required by his physical condition for the remainder of his life. Prior to the hearing, Zaccardo discontinued his action against Hockey Québec and Hockey Canada. The hearing showed that for many years both entities had systematically discouraged and condemned checking from behind. At the time of the hearing, the parties agreed to an admission as to the quantum of damages for an amount of 8 million dollars. Mr. Justice Daniel W. Payette came to the conclusion that Gauvreau-Beaupré had committed a fault and found him liable for the damages suffered by Zaccardo. The Judgment At the outset, Justice Payette stated that players participating in hockey games are subject to the law as any other citizens: [TRANSLATION] “an ice rink is not a law-free zone”2. Justice Payette reviewed the relevant case law, both from Quebec and the common law provinces and concluded that strictly speaking, “sports liability” does not exist as a separate area of liability: players are subject to the usual rules governing civil liability and are thus required to act like [TRANSLATION] “reasonable players placed in the same circumstances”. The judge also confirmed that the practice of hockey involves inherent risks which a player accepts by participating in a game, but that by doing so, he is not however deemed to accept unreasonable risks which he is not aware of. Accordingly, the violent check suffered by Zaccardo did not constitute a risk which he should have foreseen when participating in the game. Moreover, the judge noted that a breach of the rules of the game, whether sanctioned by a penalty or not during the game, will not always constitute a fault within the meaning of civil law. Therefore, the court ordered Gauvreau-Beaupré and his insurer to pay to Zaccardo the admitted amount of 8 million dollars. It must be noted that at the beginning of the hearing, Gauvreau-Beaupré’s insurer informed the court that it was not alleging the intentional fault of the insured and, accordingly, the judgment does not deal with this issue. In the circumstances, the court also ordered the insurer to indemnify Zaccardo for the damages he suffered. The surgical precision with which the judge dissected the sequence of the check shows that he no doubt has experience of the practice of hockey and leads one to believe that this may have influenced the conclusions of the judgment. In addition, the legal reasoning put forward confirms that the efforts made by Hockey Québec and Hockey Canada to promote the safe practice of hockey are still encouraged. Echoes beyond the legal sphere In addition to being the highest amount ever granted to a victim of an injury in such a context, at least in Canada according to our verifications, this judgment already echoes beyond legal circles. For the time being, it is difficult to determine the scope that this decision will have and whether it will impact sports in general. Indeed, despite the magnitude of the amount granted to Zaccardo which, again, had not been contested, the judge noted that each case is dealt with on its own merits and only involves the application of general civil liability principles. In that sense, each situation is to be considered according to its own set of facts. In an era where class actions are instituted by former professional athletes who suffered concussions3 and following numerous other cases of violent actions with serious consequences4this decision may have an impact on the prevailing culture of hockey, which is more than ever called upon to change. Lastly, it must be noted that on March 2 2016, Gauvreau-Beaupré and his insurer appealed the decision5. The conclusions reached by the judge regarding liability will therefore be reviewed in the following 18 to 24 months. Conclusion The judgment in favour of young Zaccardo and the impressive monetary compensation he was granted attest to the numerous efforts made during the last few years to raise players’ awareness to the risk of serious harm associated to the practice of contact sports. The often critical attitude of Justice Payette toward the aggressor also demonstrates that this awareness had at least already entered the mind of the judge. Despite the fact that all the calls for prudence, by-laws and increased sanctions have not succeeded in actualizing the culture of hockey6, it is to be hoped that the whistle blown by Justice Payette will accelerate the changes. Zaccardo v. Chartis Insurance Company of Canada, 2016 QCCS 398, appeal pending: 500-09-025937-160 and 500-09-025938-168. Paragraph 10 of the judgment. For illustration purposes, a group of over 100 former players of the National Hockey League filed an application to be authorized to institute a class action against the NHL for damages suffered as a result of repeated shocks received to the head while they played as professionals: http://www.cbc.ca/sports/hockey/nhl/grand-ledyard-nhl-lawsuit-1.3432273. Also see: http://www.nhlconcussionlitigation.com For example we may think about the action of Todd Bertuzzi against Steve Moore, following which Moore was unable to continue his professional hockey career: https://www.youtube.com/watch?v=Fz9RE9RGrVY. The hockey stick hit given by Marty McSorely to Donald Brashear constitutes another example: https://www.youtube.com/watch?v=eTOfsoJAij4 500-09-025937-160 and 500-09-025938-168. Only a few days ago, another young hockey player from the Montreal region suffered an injury to the neck following a check from behind by another player. However, the young man has been “luckier” than young Zaccardo since his spinal cord was not damaged: http://montrealgazette.com/news/local-news/local-midget-hockey-player-suffers-broken-neck-after-illegal-hit
On October 23, 2023, Lexpert recognized the expertise of three of our partners in its 2023 Lexpert Special Edition: Mining. Josianne Beaudry, René Branchaud and Sébastien Vézina now rank among Canada’s leaders in the area of Mining. Josianne Beaudry is a partner and leader of the Business law group at Lavery. Her practice is primarily focused on securities law, investment funds and mining law. She advises financial sector participants on the application of regulations relating to securities and corporate governance. René Branchaud is a partner in the firm’s Business Law group. He practises in the fields of securities, mergers and acquisitions, as well as corporate law. With more than thirty years’ experience, he advises companies on matters such as incorporation and organization, the drafting of shareholder agreements, private placements, public issues, going public, dispositions, and takeovers. Sébastien Vézina is a partner in the firm’s Business Law group. Over the years, he has refined his practice and developed a particular interest in negotiating commercial agreements with companies in the mining and renewable energy sources, financial services and sports and entertainment industries. Generally, Sébastien's practice in these different industries includes public and private mergers and acquisitions, public and private financing, private sector investments and company buyouts, in particular cross-border transactions between Canada and the United States and international transactions, and the negotiation of various commercial agreements. About Lavery Lavery is the leading independent law firm in Quebec. Its more than 200 professionals, based in Montréal, Quebec, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Quebec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Quebec jurisdiction.
We are pleased to announce that Lavery has once again been recognized in the 2024 edition of Chambers Canada in the following sectors: Corporate/Commercial (Québec, Band 1, Highly Regarded) Employment and Labour (Québec, Band 2) Energy and Natural Resources: Mining (Nationwide, Band 3) Intellectual Property (Nationwide, Band 4) These recognitions are further demonstration of the expertise and quality of legal services that characterize Lavery’s professionals. Five lawyers have been recognized as leaders in their respective areas of practice in the 2023 edition of the Chambers Canada guide. Areas of expertise in which they are recognized: René Branchaud : Energy and Natural Resources: Mining (Nationwide, Band 5) Nicolas Gagnon : Construction (Nationwide, Band 3) Marie-Hélène Jolicoeur : Employment and Labour (Québec, Up and Coming) Guy Lavoie : Employment and Labour (Québec, Band 2) Sébastien Vézina : Energy and Natural Resources: Mining (Nationwide, Band 5) Since 1990, Chambers and Partners' ranks the best law firms and lawyers across 200 jurisdictions throughout the world. The lawyers and law firms profiled in Chambers Canada are selected following through a rigorous process of research and interviews with a broad spectrum of lawyers and their clients. The final selection is based on clearly defined criteria such as the quality of client service, legal expertise, and commercial astuteness. About Lavery Lavery is the leading independent law firm in Quebec. Its more than 200 professionals, based in Montréal, Quebec, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Quebec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Quebec jurisdiction.
Lavery is pleased to announce that 68 of its lawyers have been recognized as leaders in their respective fields of expertise by The Best Lawyers in Canada 2024. The following lawyers also received the Lawyer of the Year award in the 2024 edition of The Best Lawyers in Canada: Josianne Beaudry : Mining Law Jules Brière : Administrative and Public Law Bernard Larocque : Professional Malpractice Law Carl Lessard : Workers' Compensation Law Consult the complete list of Lavery's lawyers and their fields of expertise: Josianne Beaudry : Mergers and Acquisitions Law / Mining Law Laurence Bich-Carrière : Class Action Litigation / Contruction Law / Corporate and Commercial Litigation / Product Liability Law Dominic Boivert : Insurance Law Luc R. Borduas : Corporate Law / Mergers and Acquisitions Law Daniel Bouchard : Environmental Law Elizabeth Bourgeois : Labour and Employment Law (Ones To Watch) René Branchaud : Mining Law / Natural Resources Law / Securities Law Étienne Brassard : Equipment Finance Law / Mergers and Acquisitions Law / Real Estate Law Jules Brière : Aboriginal Law / Indigenous Practice / Administrative and Public Law / Health Care Law Myriam Brixi : Class Action Litigation Benoit Brouillette : Labour and Employment Law Richard Burgos : Mergers and Acquisitions Law / Corporate Law / Commercial Leasing Law / Real Estate Law Marie-Claude Cantin : Insurance Law / Construction Law Brittany Carson : Labour and Employment Law Karl Chabot : Construction Law (Ones To Watch) Chantal Desjardins : Intellectual Property Law Jean-Sébastien Desroches : Corporate Law / Mergers and Acquisitions Law Raymond Doray : Privacy and Data Security Law / Administrative and Public Law / Defamation and Media Law Christian Dumoulin : Mergers and Acquisitions Law Alain Y. Dussault : Intellectual Property Law Isabelle Duval : Family Law Philippe Frère : Administrative and Public Law Simon Gagné : Labour and Employment Law Nicolas Gagnon : Construction Law Richard Gaudreault : Labour and Employment Law Julie Gauvreau : Intellectual Property Law / Biotechnology and Life Sciences Practice Audrey Gibeault : Trusts and Estates Caroline Harnois : Family Law / Family Law Mediation / Trusts and Estates Marie-Josée Hétu : Labour and Employment Law Édith Jacques : Energy Law / Corporate Law / Natural Resources Law Marie-Hélène Jolicoeur : Labour and Employment Law Isabelle Jomphe : Advertising and Marketing Law / Intellectual Property Law Guillaume Laberge : Administrative and Public Law Jonathan Lacoste-Jobin : Insurance Law Awatif Lakhdar : Family Law Bernard Larocque : Professional Malpractice Law / Class Action Litigation / Insurance Law / Legal Malpractice Law Éric Lavallée : Technology Law Myriam Lavallée : Labour and Employment Law Guy Lavoie : Labour and Employment Law / Workers' Compensation Law Jean Legault : Banking and Finance Law / Insolvency and Financial Restructuring Law Carl Lessard : Workers' Compensation Law / Labour and Employment Law Josiane L'Heureux : Labour and Employment Law Despina Mandilaras : Construction Law / Corporate and Commercial Litigation (Ones To Watch) Hugh Mansfield : Intellectual Property Law Zeïneb Mellouli : Labour and Employment Law / Workers' Compensation Law Isabelle P. Mercure : Trusts and Estates Patrick A. Molinari : Health Care Law Jessica Parent : Labour and Employment Law (Ones To Watch) Luc Pariseau : Tax Law / Trusts and Estates Ariane Pasquier : Labour and Employment Law Jacques Paul-Hus : Mergers and Acquisitions Law Audrey Pelletier : Tax Law (Ones To Watch) Hubert Pepin : Labour and Employment Law Martin Pichette : Insurance Law / Professional Malpractice Law / Corporate and Commercial Litigation Élisabeth Pinard : Family Law François Renaud : Banking and Finance Law / Structured Finance Law Judith Rochette : Insurance Law / Professional Malpractice Law Ian Rose FCIArb : Director and Officer Liability Practice / Insurance Law / Class Action Litigation Sophie Roy : Insurance Law (Ones To Watch) Chantal Saint-Onge : Corporate and Commercial Litigation (Ones To Watch) Ouassim Tadlaoui : Construction Law / Insolvency and Financial Restructuring Law Bernard Trang : Banking and Finance Law / Project Finance Law (Ones To Watch) Mylène Vallières : Mergers and Acquisitions Law / Securities Law (Ones To Watch) André Vautour : Corporate Governance Practice / Corporate Law / Information Technology Law / Intellectual Property Law / Technology Law / Energy Law Bruno Verdon : Corporate and Commercial Litigation Sébastien Vézina : Mergers and Acquisitions Law / Mining Law Yanick Vlasak : Corporate and Commercial Litigation / Insolvency and Financial Restructuring Law Jonathan Warin : Insolvency and Financial Restructuring Law These recognitions are further demonstration of the expertise and quality of legal services that characterize Lavery’s professionals. About Lavery Lavery is the leading independent law firm in Quebec. Its more than 200 professionals, based in Montréal, Quebec, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Quebec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Quebec jurisdiction.
Lavery is proud to announce that 33 partners are ranked among the leading practitioners in Canada in their respective practice areas in the 2023 edition of The Canadian Legal Lexpert Directory. The following Lavery partners are listed in the 2023 edition of The Canadian Legal Lexpert Directory: Class Actions Laurence Bich-Carrière Myriam Brixi Construction Law Nicolas Gagnon Corporate Commercial Law Étienne Brassard Jean-Sébastien Desroches Christian Dumoulin Édith Jacques Corporate Finance & Securities Josianne Beaudry René Branchaud Corporate Mid-Market Luc R. Borduas Étienne Brassard Jean-Sébastien Desroches Christian Dumoulin Édith Jacques Selena Lu André Vautour Employment Law Richard Gaudreault Marie-Josée Hétu Guy Lavoie Zeïneb Mellouli Infrastructure Law Nicolas Gagnon Insolvency & Financial Restructuring Jean Legault Ouassim Tadlaoui Yanick Vlasak Jonathan Warin Intellectual Property Chantal Desjardins Alain Y. Dussault Isabelle Jomphe Labour Relations Benoit Brouillette Simon Gagné Richard Gaudreault Marie-Josée Hétu Marie-Hélène Jolicoeur Guy Lavoie Litigation - Commercial Insurance Marie-Claude Cantin Bernard Larocque Martin Pichette Laurence Bich-Carrière Mergers & Acquisitions Josianne Beaudry Mining Josianne Beaudry René Branchaud Sébastien Vézina Occupational Health & Safety Josiane L'Heureux Property Leasing Richard Burgos Workers' Compensation Marie-Josée Hétu Guy Lavoie Carl Lessard