Fair Game Merch - NFL T-Shirts

Todd C. Bank v. NFL Properties LLC

On May 12, 2025, I brought a case in the Southern District of New York in which I am requesting that the court declare, in a judgment (known as a declaratory judgment), that I would not be violating the National Football League’s rights under federal trademark law if I were to sell NFL-logo-bearing t-shirts without the NFL’s approval. Below are documents from the case.

On October 20, 2025, Senior District Judge Colleen McMahon dismissed the case. The dismissal did not concern (and thus did not reject) my legal theory of why I should be allowed to sell the t-shirts. Rather, Judge McMahon reasoned that judicial efficiency would be better served if I were to sell the t-shirts and thereupon get sued by the NFL for trademark infringement, during the litigation of which I could defend myself by asserting my legal theory. In a letter to Judge McMahon dated October 24, 2025 (which is posted below), I addressed several portions of the decision in which Judge McMahon displayed a shocking lack of integrity, impartiality, and decency, and embarrassed herself far more than she had clearly sought, with her mean-spirited mindsent, to embarrass me. I urge you to read her decision and my letter, as well as her 2005 law-review article (also posted below), which is full of platitudes to which she evidently does not subscribe.

I believe that any honest person, regardless of whether he thinks that, as a general or public-policy matter, I should be allowed to sell the t-shirts, would conclude from the documents below that, as a legal matter, I am allowed.

The battle will continue.

Complaint [May 12, 2025]

Plaintiff’s response to Defendant’s Related Case Statement [May 30, 2025]

Defendant’s letter to Judge Andrew L. Carter, Jr. requesting a pre-motion conference regarding the request to transfer this case to Judge McMahon, as well as Defendant’s proposed motion to dismiss Plaintiff’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) and motion

for costs pursuant to Federal Rule of Civil Procedure 41(d)Related Case Statement [June 9, 2025]

Notice of Case Reassignment from Judge Andrew L. Carter, Jr., to Judge Colleen McMahon [June 10, 2025]

Defendant’s Notice of Motion for an Order dismissing Plaintiff’s Complaint in its entirety with prejudice pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and granting such other relief as the Court deems just and proper [June 10, 2025]

Defendant’s Memorandum of Law in support of Defendant’s Motion for

an Order dismissing Plaintiff’s Complaint in its entirety with prejudice pursuant

to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and granting

such other relief as the Court deems just and proper [June 10, 2025]

Defendant’s letter to Plaintiff threatening to seek sanctions against Plaintiff if he

does not withdraw the Complaint within 21 days, i.e., by July 1, 2025 [June 10, 2025]

Plaintiff’s letter to Judge McMahon requesting (i) permission to respond to the pre-motion

letter (Doc. 10) that Defendant filed on June 9, 2025, prior to the reassignment of the case from

Judge Carter; or (ii) that the Court strike the letter from the docket. [June 11, 2025]

Order denying Plaintiff’s request for (i) permission to respond to the pre-motion letter

(Doc. 10) that Defendant filed on June 9, 2025, prior to the reassignment of the case from

Judge Carter; or (ii) that the Court strike the letter from the docket [June 12, 2025]

The handwritten Order states: “Permission to respond DENIED. Mr. Bank,

you are an attorney and you should know that the court’s rules for the Division of

Business among Judges confer NO RIGHTS WHATEVER on you and are enforceable

solely by the Court. Our decisions are not questionable or removable.”

Plaintiff’s letter to Judge McMahon regarding Order denying Plaintiff’s request for (i) permission to respond to the pre-motion letter (Doc. 10) that Defendant filed on June 9, 2025, prior to the reassignment of the case from Judge Carter; or (ii) that the Court strike the letter from the docket. [June 12, 2025]

Court’s response to Plaintiff’s letter to Judge McMahon regarding Order denying Plaintiff’s request for (i) permission to respond to the pre-motion letter (Doc. 10)

that Defendant filed on June 9, 2025, prior to the reassignment of the case from

Judge Carter; or (ii) that the Court strike the letter from the docket. [June 13, 2025]

The handwritten response states: “There is no need for any letter”

Request by Plaintiff to Defendant for consent to Plaintiff’s forthcoming request to the Court for permission to submit a brief of up to 40 pages (instead of the regular 25-page maximum) in opposition to Defendant’s dismissal motion; and response by Defendant stating: “NFLP does not consent to your request.” [June 18, 2025, and June 19, 2025]

Plaintiff’s letter to Judge McMahon requesting permission to submit a brief of up to 40 pages (instead of the regular 25-page maximum) in opposition to Defendant’s dismissal motion [June 19, 2025]

Order granting Plaintiff’s request to submit a brief of up to 40 pages (instead of the regular

25-page maximum) in opposition to Defendant’s dismissal motion [June 20, 2025]

The faded stamp to the right of “Dear Judge McMahon:” states: “MEMO ENDORSED”

The handwritten Order states: “6/20/25[;] Reply briefs

may not exceed 10 pages. You may have 15, No more”

Plaintiff’s Declaration in opposition to Defendant’s Motion for an Order

dismissing Plaintiff’s Complaint in its entirety with prejudice pursuant to Rules

12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and granting such

other relief as the Court deems just and proper 1 [June 24, 2025]

Plaintiff’s Memorandum of Law in opposition to Defendant’s Motion for an

Order dismissing Plaintiff’s Complaint in its entirety with prejudice pursuant

to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and granting

such other relief as the Court deems just and proper [June 24, 2025]

Declaration of Nicole O. Swanson, and two exhibits, in support of Defendant’s Reply

in further support of Defendant’s Motion for an Order dismissing Plaintiff’s Complaint in

its entirety with prejudice pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure, and granting such other relief as the Court deems just and proper [June 30, 2025]

Defendant’s Reply Memorandum of Law in further support of Defendant’s Motion

for an Order dismissing Plaintiff’s Complaint in its entirety with prejudice pursuant

to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and granting

such other relief as the Court deems just and proper [June 30, 2025]

Defendant’s Notice of Motion for an Order granting costs pursuant

to Rule 41(d) of the Federal Rules of Civil Procedure, and granting such

other relief as the Court deems just and proper [June 30, 2025]

Defendant’s Memorandum of Law in support of Motion for an Order

granting costs pursuant to Rule 41(d) of the Federal Rules of Civil Procedure

and, granting such other relief as the Court deems just and proper [June 30, 2025]

Plaintiff’s letter to Defendant threatening to seek sanctions against Defendant

and/or Defendant’s counsel if Defendant does not withdraw its motion for

costs within 21 days, i.e., by July 21, 2025 [June 30, 2025]

Plaintiff’s letter to Judge McMahon requesting permission to

submit a 27-page sur-reply in response to the reply brief that

Defendant submitted in support of its dismissal motion [July 7, 2025]

Plaintiff’s letter to Defendant offering to show that this

website is capable of processing orders [July 7, 2025]

Order denying Plaintiff’s request to submit a sur-reply in response to the reply

brief that Defendant submitted in support of its dismissal motion [July 8, 2025]

Sur-reply that Plaintiff would have submitted if granted permission [July __, 2025]

Email correspondence in which Plaintiff stated to Defendant’s counsel, “Please

let me know today if, and when, you will be responding to [Plaintiff’s letter to

Defendant offering to show that this website is capable of processing orders],” to

which Defendant’s counsel responded: “NFLP does not believe a response is appropriate and stands by the position set forth in its pending motion to dismiss.” [July 9, 2025]

Plaintiff’s letter to Defendant stating: “As shown in the attachment to this letter,

I made a test purchase through the FGM Website. Please let me know by tomorrow if

you have a position on my forthcoming request to submit it, along with an explanatory declaration, to the Court. If you have any questions, or would like to see the declaration,

please let me know.” The attachment is included here. [July 10, 2025]

Email from Defendant’s counsel stating: “The Court has denied your motion for

a sur-reply. We believe any such submission is improper and sanctionable. If you

insist on such a submission, please include our position.” [July 11, 2025]

Plaintiff’s letter to Defendant’s counsel stating: “Please clarify whether you misread my

letter, in which I did not state that I would submit a declaration or the attachment to my

letter, but, rather, that I would request permission to submit them.” [July 11, 2025]

Email from Defendant’s counsel stating: “NFLP does not consent to your request and believes it is improper in light of the Court’s recent denial of your motion to file a sur-reply brief.” [July 11, 2025]

Plaintiff’s letter to Defendant’s counsel stating: “Given that I am not seeking permission to submit

a brief, but rather a declaration and exhibit that would show that the FGM Website is capable of processing orders, please explain why you take the position that my mere request for submission would be ‘improper.’ As an alternative to my request to make such submission, would NFLP

consider entering into a stipulation stating that NFLP has reviewed the evidence that I provided

to you regarding the capability of the FGM Website to process orders? Does NFLP dispute either

the authenticity of the attachment that I provided with my letter to you yesterday or my description

if it, i.e., that it ‘show[ed] . . . [that] I made a test purchase through the FGM Website’? Is

there a particular reason why you do not wish the Court to know that the FGM Website is

capable of processing orders? If you believe that it would be more appropriate for me to inform

the Court of the site’s capability in some other way, please let me know.” [July 11, 2025]

Plaintiff’s letter to Judge McMahon requesting permission to submit a declaration and

exhibit showing that the FGM Website is capable of processing orders [July 11, 2025]

Plaintiff’s Memorandum of Law in opposition to Defendant’s Motion for an Order

granting costs pursuant to Rule 41(d) of the Federal Rules of Civil Procedure,

and granting such other relief as the Court deems just and proper [July 14, 2025]

Defendant’s Reply Memorandum of Law in further support of Motion for an Order

granting costs pursuant to Rule 41(d) of the Federal Rules of Civil Procedure,

and granting such other relief as the Court deems just and proper [July 18, 2025]

Plaintiff’s Notice of Motion for an Order imposing sanctions against Defendant and/or

its counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure, and granting

such other and further relief as the Court deems just and proper [July 22, 2025]

Plaintiff’s Declaration in support of Motion for an Order imposing sanctions against Defendant and/or its counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure, and granting such other and further relief as the Court deems just and proper [July 22, 2025]

Plaintiff’s Memorandum of Law in support of Motion for an Order imposing sanctions against Defendant and/or its counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure, and granting such other and further relief as the Court deems just and proper [July 22, 2025]

Plaintiff’s letter to Judge McMahon regarding request for permission to submit a declaration and

exhibit showing that the FGM Website is capable of processing orders [July 25, 2025]

Order denying Plaintiff’s request for permission to submit a declaration and

exhibit showing that the FGM Website is capable of processing orders [July 29, 2025]

The handwritten Order states: “I understand the parties’ position on the issue and will take

them into account in rendering a decision. No additional filings are needed at this time.”

Defendant’s Memorandum of Law in opposition to Plaintiff’s Motion for an Order imposing sanctions against Defendant and/or its counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure, and granting such other and further relief as the Court deems just and proper [July 31, 2025]

Plaintiff’s Reply Memorandum of Law in further support of Motion for an Order imposing sanctions against Defendant and/or its counsel pursuant to Rule 11 of the Federal Rules of Civil Procedure, and granting such other and further relief as the Court deems just and proper [August 5, 2025]