Sportslaw Jargon: Trademark Infringement

Trademark issues have become very important in sports (click CoorsNFLPA, Flamepit, Johnny Blastoff for recent examples) and infringement has been a source of great concern, both from an economic and legal standpoint.

Defined as "any word, name, symbol or device or any combination thereof adopted and used by a manufacturer to identify his goods and distinguish them from those manufactured or sold by others" a trademark may include the teams, league and unions’ names, logos, symbols, emblems, designs, uniforms, likenesses, visual representations. As an example, the following could be protect as trademarks of the Dallas Cowboys: the names "Dallas Cowboys," "Cowboys" and "Dallas" (if it is in the same distinctive script or in silver or blue). Also protected is the Blue and Silver star, and a blue and silver striped jersey.

Trademark law is governed by the Lanham Act of 1946 and the Trademark Antidilution law of 1996

If there is an unauthorized use of the trademark -- defined as "the reproduction, counterfeiting, copying, or imitation, in commerce, of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion among consumer as to the source or origin of the goods sold" -- an infringement occurs and the offender is subject to liability, either by damages and/or injunctive relief.

The plaintiff must show that the suing party is the owner of the mark and the use of the mark is likely to cause confusion among consumers as to the source or origin of the goods sold. The first prong is easy to show; the second can be difficult.

To show likelihood of confusion, the courts employ several factors:

the strength of the mark – how well known it is
the degree or similarity between plaintiff’s and defendant’s mark
the proximity of the products or services;
evidence of actual confusion
defendant’s good faith in adopting the mark (was defendant careless?)
the quality of defendant’s product or service
the sophistication of the buyers.