Nike: Just Drop It – Unexpected Issues Defending the Jumpman Mark

Sportswear giant Nike stumbled at the starting line in its Trademark Trial and Appeal Board (TTAB) opposition proceeding against Palm Beach Crossfit (PB Crossfit) earlier this September, 2015. Nike owns several well-known marks, but this specific opposition concerned a mark near and dear to the hearts of all basketball fans, and Chicago in particular, the “Jumpman.” Nike has a problem with PB Crossfit’s handstand mark, shown below, claiming (1) it falsely suggests a connection with Michael Jordan and Nike, (2) shows a portrait of a living person without their consent (also Jordan); (3) likelihood of confusion with the Jumpman mark; and (4) dilution. PB Crossfit filed a motion to dismiss all of Nike’s claims in the TTAB, and in a rare precedential opinion, the TTAB granted PB Crossfit’s motion to dismiss as to the false connection with Jordan and the lack of Jordan’s consent for their mark. Nike’s likelihood of confusion and dilution claims, however, are still live.

Fireball Whisky and Trade Dress Protection, Straight Up

This past August, Sazerac, the distillery behind Fireball Cinnamon Whisky, sued Stout Brewing Company over Stout’s malt liquor brand, Fire Flask. And Sazerac does not play around; in 2012 it sued Hood River Distillers over the packaging and branding of its SinFire Cinnamon Whiskey, and in March of 2014 sued Crosby Lake Spirits Co. over its Bison Ridge Canadian whisky, claiming it was confusingly similar to Sazerac’s Buffalo Trace. Sazerac’s Fireball is credited with sparking the wave of cinnamon-flavored liquors across the U.S., and is celebrated at college parties everywhere.

Left Shark 2: Don’t Go in the Water (or in this case, USPTO)

In a previous blog post, we covered the drama surrounding Katy Perry’s attempted copyright claims over the now infamous Super Bowl Left Shark against artist Fernando Sosa and his three dimensional “left shark” figurines. However, the tenacious pop star refuses to give up “unconditionally,” and filed several trademark applications with the US Patent and Trademark Office (“USPTO”) in February 2015, for two design marks representing Left Shark (App. Nos. 86/529,342 and 86/529,321), and the word marks LEFT SHARK (App. No. 86/526,826), BASKING SHARK (App. No. 86/527,055), DRUNK SHARK (App. No. 96/527,031), and, not to be forgotten, RIGHT SHARK (App. No. 86/526,829) for use in connection with a variety of goods (including figurines) as well as live music and dance performance services.

Unfortunately for Perry and her company, Killer Queen, LLC, the USPTO hasn’t been “hot n cold” so much as freezing.