Sports Law Scoreboard : Sports Lawyer & Attorney : Fox Rothschild Law Firm : Intellectual Property, Copyright Infringement & Privacy for Athletes

Under Armour recently filed suit in Maryland federal court alleging both likelihood of confusion and dilution of these marks: interlocking UA image, “Protect this House,” and “Under Armour” itself.  The suit is against owners of the following marks: a shield with an interlocking image, “Protect + Restore,” and “BODY ARMOR.” 

The owners of the “BODY ARMOR” and affiliated marks sell sports drinks.  Under Armour, a sports apparel company, has claimed that even if its likelihood of confusion claims fail, the mark may dilute the Under Armour brands and tag line.  While no answer has yet been filed, judging by this article published by a leading beverage industry periodical, Under Armour may face a battle against the owners of “BODY ARMOR” and its affiliated marks.

If contested and brought to a decision, this could be an interesting foray into the “likelihood of dilution” standard for sports-related marks, a standard still being developed after Congress’ 2006 reversal of the earlier “actual dilution” standard articulated by the U.S. Supreme Court in Moseley v. Victoria Secret Catalogue, Inc., 537 US 418 (2003).  Given the fame of many sports marks, this case could have an interesting impact on teams and other sports-related entities’ enforcement of their trademarks.

More updates on “Culture & Commerce” in the sports world will be forthcoming as new developments arise. 

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Generally, business owners do not vie for the opportunity to call their products “terrible.”  Unless, of course, those businesses are located in Steelers Country.  In December of last year, the Western District Court of Pennsylvania granted summary judgment to the owners of "The Terrible” and “The Terrible Towel” marks against the registrant of the mark “The Terrible T-Shirt A Pittsburgh Original” bearing the same or similarly colored black and yellow colors.

In 1975, two weeks prior to Pittsburgh’s first playoff game in the Superbowl era, radio broadcaster Myron Cope came up with a promotion for the game by encouraging fans to support the team by twirling “Terrible Towels.”  The rest is history.  The Steelers franchise went on to win the championship that year and in three of the next five years.  The “Terrible Towel” was here to stay and became part of the fabric of Pittsburgh sports life.  Myron Cope eventually assigned his ownership of “The Terrible” and “The Terrible Towel” to the Allegheny Valley School Foundation, benefitting Pittsburgh-area schools.

That foundation recently won summary judgment against Eugene Berry Enterprise, LLC for its attempt to register “The Terrible T-Shirt A Pittsburgh Original.”  The defendant was likely not aided by the fact that the suit was brought in the Western District of Pennsylvania.  The Court took judicial notice that “The Terrible” and “The Terrible Towel” was a famous mark akin to “Kodak” and “Lifesavers,” a conclusion more likely in Pittsburgh than anywhere else.

The significance of that reasoning may have broader effects in later cases potentially involving sports-related marks because the Trademark Dilution Revision Act of 2006 has significantly lowered the burden of proof on famous mark owners.  The importance of fame under the TDRA will be discussed in the context of a later post related to the recent Under Armour suit.

More updates on “Culture & Commerce” in the sports world will be forthcoming as new developments arise.

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