ITG wants Winston Cup Museum co-owner to face criminal contempt

ITG Brands LLC filed a motion Friday requesting that a N.C. Business Court judge find Will Spencer guilty of criminal and civil contempt for reposting a YouTube video covering the museum’s pending demise. It submitted an affidavit from its general counsel Geraldine Barker.

The Greensboro tobacco manufacturer claims the video posted Nov. 30 by NASCAR historian Mitchell Stapleton is “disparaging and defamatory.”

Spencer linked the video to the museum’s Facebook page Dec. 1. The video had been on the Facebook page as of Sunday, but Spencer said Monday he removed it “in good faith to show we did not know we were in violation of the court order.”

Under state law, Spencer could be sentenced to up to 30 days in jail and fined up to $500 if found in criminal contempt. For civil contempt, there’s a potential for imprisonment of between 90 days to a year if the subject matter is not purged.

“Considering the egregious nature of the misconduct, even if defendants remove the offending video and publish a retraction, Will Spencer should be held in criminal contempt as punishment for his willful actions,” ITG said in the motion.

Will and Christy Spencer will close the museum at 1355 Martin Luther King Jr. Drive after nearly 20 years as their way of ending the multiyear legal battle with ITG. A “final lap” celebration is set for 10 a.m. to 5 p.m. Saturday.

Winston Cup championship series and other NASCAR items have been stored and displayed at the museum, as well as via mobile museum displays.

The bulk of the memorabilia will be auctioned from Jan. 2-14 at Mecum Auto Auctions in Kissimmee, Fla.

Because of the animosity between the Spencers and ITG, Will Spencer said selling any of the memorabilia to ITG “was not an option.”

Stapleton’s 79-minute presentation focused primarily on Spencer sharing historic details and colorful anecdotes about the Winston Cup and NASCAR memorabilia.

As of Monday, the video already has more than 174,000 viewings and 739 viewer comments.

Stapleton said Spencer’s dream of the Winston Cup Museum has been “a tribute to the greatest era in stock car racing” and that “it is a sad day when a museum like this is driven to closure.”

The Stapleton video begins with Stapleton saying: “There are some things you got to know about Will Spencer and the Winston Cup Museum before we get going.”

Narrating over media headlines and Spencer’s social media posts, Stapleton said “if you’re a race fan, you’ve probably seen the articles about the Winston Cup Museum having to close on December 16th, 2023.”

“Maybe you’ve seen the stuff about the lawsuits surrounding (the museum); the questionable at best United States judicial system has allowed a large company to bully this guy into closing his museum.”

Stapleton praised Spencer for spending money and time on preserving not only the Winston Cup memorabilia, but also local buildings, since “he cares about his hometown.”

“He is kind of guy you want living in your hometown, and this is a story that I wish we didn’t have to make a video about, but we do.”

ITG claims that “Mr. Spencer and the museum plainly encouraged and aided the interviewer in his disparagement of ITG, in further violation of the judgment, by participating in and promoting the video, and then celebrating the video on the Winston Cup Museum Facebook page.”

“Throughout the course of this litigation, and especially after ITG filed its motion for preliminary injunction, Will Spencer made multiple false statements to the media to make himself out as the victim and ITG as the bully.”

“More broadly, the narrative that Mr. Spencer is the victim of anything other than his own greed is not true.”

ITG claims

ITG has filed three different lawsuits — two of which have been dismissed — in which it insists it owns and controls the intellectual property rights associated with the Winston brand.

That’s not only the traditional cigarette its parent company Imperial Brands Plc bought the rights to in July 2015, but also Winston Cup memorabilia held by Spencer, according to Barker’s affidavit.

Spencer has said that when Imperial bought the Winston brand, “the only thing that transferred was what was on a pack of cigarettes because the (Reynolds) sports marketing was closed in 2003.”

In July, the company said, “we share Mr. Spencer’s enthusiasm for the heritage of the Winston Cup, which is why we have repeatedly attempted to reach an agreement that would allow him to continue operating his permanent museum.”

A final order and judgment was approved by Business Court Judge Adam Conrad on Nov. 2.

Will Spencer said that “we do believe there is a positive side to every situation, and one major positive for us is that the agreement makes clear that the overwhelming majority of the assets” of the museum belong to the Spencers.

ITG said that “given defendants’ prior conduct, ITG knew that Mr. Spencer could not be trusted. Thus, ITG requested, as a condition of settlement, that defendants’ agreements be entered as an order of the court punishable by contempt.”

“As expected, Mr. Spencer has now failed to honor his word.”

Will Spencer said he is limited on what he can say about the contempt motion other than, “I’m trying to figure out what false statements I made to the Journal” that’s cited in the Barker affidavit.

Background

Spencer has said the Winston logo at the heart of the trademark issue was developed by him as a third-party vendor to R.J. Reynolds Tobacco Co.

Since June 2015, ITG has controlled the Winston traditional cigarette brand as part of U.K.-based parent company Imperial Brands Plc’s $7.1 billion purchase of the Winston, Salem, Kool and Maverick brands from Reynolds American Inc. and Lorillard Inc.

Barker claims in her affidavit that as part of the Imperial purchase, ITG owns the intellectual property rights to Reynolds’ Winston Cup racing series copyrights, including videos, photographs, signs and advertising.

Spencer said ITG’s goal has been to make legal expenses so costly over time that the couple would agree to a settlement.

In throwing the white flag on the museum — which signifies the final lap of a race — the Spencers said in a Nov. 14 statement that “this is not a decision we have come to lightly, but it is the necessary end of 19 wonderful years.”

“After assessing the museum’s current financial condition and the significant expense required to completely rebrand the museum, we have decided to close the brick-and-mortar version of the museum permanently,” the Spencers said. “History is hard to preserve and even harder to save. I am grateful I did my part for 19 years.”

The Spencers said the closing of the museum “does not mean an end to preserving great racing history and stories.”

“So, stay tuned to learn more about our future plans and how we will move forward into 2024.”

Mobile museum factor

Since 2005, the museum’s mobile display has appeared at NASCAR races in Darlington, S.C., Dover, Del., and North Wilkesboro. It also appeared twice at the then-Dixie Classic Fair, as well as at ITG’s corporate headquarters in 2017.

According to Spencer, operators at Charlotte, Daytona Beach, Martinsville, Va., Rockingham and Talladega, Ala., had requested the mobile museum for exhibitions this year.

It was the NASCAR All-Star events in May at North Wilkesboro Speedway that served as the latest catalyst in the legal dispute.

ITG claimed in the motion that “the situation got worse” that weekend with the appearance of the “Mobile Winston Cup Museum.” ITG claimed the traveling exhibit sold Winston-branded merchandise “using words, fonts, images and logos identical to the Winston marks.”

“The museum and defendants’ merchandise is specifically designed to exploit and trade on the goodwill and nostalgia of the Winston Cup Series era of NASCAR by falsely associating defendants with ITG’s Winston brand and Winston marks.”

ITG claimed that most of its customers at the speakeasy associated the museum’s exhibition with ITG, thereby “creating confusion” that could be damaging to its reputation.

“However, as the owner of the Winston trademark, ITG Brands has a responsibility to ensure that any use of this trademark complies with the law and is an appropriate marketing practice.”

ITG claims Spencer and the museum have “repeatedly engaged in activity that, among other things, violates the Master Settlement Agreement by appealing to an audience other than adults over the age of 21.

“ITG Brands has had no choice as a responsible manufacturer, but to seek protection through the court.”

Barker said in her affidavit that “in its negotiations, ITG was not attempting to close the Winston Cup Museum or remove Spencer as the museum’s operator.”

“ITG’s position was simply that Spencer could not infringe on ITG’s intellectual property and could not falsely associate ITG with marketing the Winston brands to people under 21 years old.”

Spencer countered by saying the museum is not subject to the restrictions placed by the Master Settlement Agreement because it has never sold tobacco products.

ITG claimed that most of “its customers” at the speakeasy associated the museum’s exhibition with ITG, thereby “creating confusion” that it claimed could be damaging to its reputation.

“I know the direction of what they wanted” with the memorabilia, Spencer said.

“I was never work-for-hire with Reynolds. I did what needed to be done to support the Winston Cup Series and Reynolds’ history in the golden era of NASCAR.

“I am proud of what we did.”