NASCAR files response in AT&T lawsuit

In the ongoing NASCAR-AT&T legal battle, NASCAR attorneys wonder whether the Playboy bunny logo would have to be considered for the No.31 Richard Childress Racing car if Cingular had merged, for instance, with the men's magazine.

NASCAR uses that exaggerated hypothetical situation in its latest legal brief as part of an appeal of a May 18 injunction that allows the AT&T logos to replace the Cingular logos on the Jeff Burton car.

AT&T has argued that by being involved in a merger with Cingular parent company BellSouth, its branding should be given the same grandfathered-in status as the Cingular marks were when Nextel began sponsoring the Cup Series in 2004.

NASCAR says that can't be the case:

"Imagine Cingular were acquired by Playboy, changed its trade-name to Playboy and 'adopted' the Playboy marks," NASCAR's attorneys write in their latest brief. "Cingular cannot seriously claim that it could force RCR to use the Playboy marks. Nor can Cingular seriously argue that NASCAR could be compelled to permit display of the Playboy brand.

"More realistically, imagine if Cingular were acquired by Google. During some of the relevant period another race car owned by RCR was sponsored by a Google competitor, AOL. As in the RCR-Cingular Agreement, AOL had exclusive advertising rights for its category within RCR.

"Under Cingular's reading of [its] Cingular-RCR Agremment, it would be permitted to 'adopt' the Google brand and 'place' it on Car No. 31, thereby rendering RCR in violation of its other contractual undertakings - all without RCR's express written consent."

NASCAR's 37-page brief includes many of its previous arguments, including that as a private organization it should be allowed to approve and disapprove paint schemes.

The appeal is scheduled to be heard Aug. 2 in Atlanta.