'And Down the Stretch They…' Sue

Dave Johnson, the longtime race announcer whose iconic “And down the stretch they come!” signature call has put a stamp of big-race authenticity on nationally-broadcast Triple Crown and other major Thoroughbred races for over 50 years, filed a federal lawsuit Wednesday seeking unspecified damages against the creators of the 2014 film “St. Vincent” for unauthorized use of his trademarked famous phrase.

According to the 56-page lawsuit filed in United States District Court (Southern District of New York), the actor Bill Murray, “playing the role of an alcoholic degenerate gambler,” mimicked what is widely considered the sport's best-known stretch call “in a manner essentially identical to Dave Johnson's use of the mark in order to…profit from these associations.”

“St. Vincent” grossed $54.8 million worldwide, according to BoxOfficeMojo.com.

Johnson (who is an occasional contributor to TDN) trademarked his signature call in 2012. His suit claims that the filmmakers neither sought his permission to use the line, nor did they respond to a written demand letter to stop using it once Johnson discovered his phrase was in the film.

“The bottom line is Dave Johnson worked his whole life to make a brand,” Johnson's attorney, Andrew Mollica, told TDN via phone. “And that phrase is his–he owns it, it encapsulates all his being, and it's trademarked.

“Dave Johnson, as long as I've been his attorney, every time we see a violation, we chase it. We protect this mark,” Mollica continued. “We have sent cease-and-desist letters to racetracks, to announcers personally, to video game makers. No one else uses this mark.”

But Mollica underscored that Johnson's vigilant safeguarding of his trademarked phrase is more of a point of pride to protect something he created rather than a way to make money by seeking damages.

“One hundred percent of the [damages Johnson has previously been awarded], after legal fees, he's given to charities,” Mollica said. “This is not a money grab. That's very important to put in the story because Dave would like people to know: He gives it all away to charities.”

Murray's utterance, which involves a wheelchair race at the 1:12.29 mark of the movie, “reflects the dark side of horse racing” because of the unsavory nature of the character, the suit contends.

In that context, it also “damages, blurs, tarnishes, and dilutes the mark and the rights and reputation of the mark's creator and owner, Dave Johnson.”

The lawsuit further asserts that Johnson “is one of many famous sports broadcasters to trademark a signature phrase,” noting that college basketball announcer Dick Vitale has a trademark for his “Awesome, baby!” exclamation; boxing announcer Michael Buffer has one for his famous “Let's get ready to rumble!” line, and the late Chicago Cubs radio voice Harry Caray had four trademarks for his signature “Holy Cow!” exclamation.

The civil complaint contends that the influence of “And down the stretch they come!” is well recognized and “synonymous with some of the most historic race calls of the 1980's and 1990's and is the signature call of every Triple Crown race Dave Johnson ever announced.”

Defendants in the lawsuit include 10 corporate entities, including The Chernin Group, LLC, and The Weinstein Company, LLC, plus 10 John/Jane Doe individuals whose names were not known at the time of the Mar. 20 filing. The actor who uttered the line, Murray, is not named as a defendant.

The defendants could not be reached for comment prior to deadline for this story.