Under Armour Apparel vs. Body Armor Beverage: Trademark Infringement and the Similarity of Goods Analysis

trademark infringementThe previous Trademark Access blog post discussed a trademark infringement suit between two baseball glove manufacturers.  Rawlings Sporting Goods sponsors the “Rawlings Gold Glove Award” baseball glove manufacturers. Rawlings Sporting Goods sponsors the “Rawlings Gold Glove Award” and owns a US trademark registration for that phrase. Rawlings brought suit against Wilson Sporting Goods claiming that Wilson was creating confusion in the marketplace by outfitting a professional baseball player with a gold glove and thereby infringing on Rawlings’s trademark. In a trademark infringement case like this one, one of the major factors that a court would look at is how similar the goods associated with the marks are to each other. If the goods are unrelated, it is less likely there will be any confusion about the source of goods and less likely there will be infringement.

In the Gold Glove case, it is easy to see the connection between the goods of the two companies and how a consumer might be confused. Both companies manufacture baseball gloves and a Wilson manufactured gold glove could potentially cause confusion about the actual source of the Gold Glove award, which is a Rawlings trademark. But what if the goods are not identical? Or for that matter, not very obviously related? A recent lawsuit by Under Armour brought against Body Armour emphasizes these issues.

Under Armour, a sports apparel manufacturer, is suing Body Armor, a beverage manufacturer, claiming that Body Armor’s logo and tagline are infringing on Under Armour’s trademarks. (See BEVNET article about lawsuit here. http://www.bevnet.com/news/2012/body-armor-vows-to-fight-ridiculous-under-armour-lawsuit) Under Armour alleges that the interlocking braid on the front of Body Armor’s labels closely resembles its own interlocking U and A logo, and that Body Armor’s “Prevent + Protect” tagline infringes upon Under Armour’s famous “Protect This House” slogan. Under Armour believes that the violations are exceptionally egregious because both companies have a similar target consumer group.

Unsurprisingly, Body Armor disagrees. In its official response to the lawsuit, the company stated that “Under Armour and Body Armor operate in disparate industries, produce distinctly unrelated products, and share no branding or logo similarities.” So who is right? And how is a dispute like this settled?

Body Armor is somewhat of a sports/fitness-type health drink. It’s not unreasonable to think that a sports related manufacturer like Under Armour could produce a sports/energy drink or that there is some overlap between the consumers of both companies. But is there enough similarity between the goods of both companies to find trademark infringement?

Ultimately, a court will most likely answer this question unless the parties settle the dispute first. However, a trademark attorney evaluating this case will likely review some of the following principles of US trademark law to assist his or her evaluation.

1. The goods and/or services do not have to be identical or even competitive in order to find that there is a likelihood of confusion.

2. The issue is not whether the goods and/or services will be confused with each other, but rather whether the public will be confused as to their source. Even if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods. It is this sense of relatedness that matters in the likelihood of confusion analysis.

3. It is sufficient that the goods and/or services of the applicant and the registrant are related in some manner or that the conditions surrounding their marketing are such that they are likely to be encountered by the same persons under circumstances that, because of the marks used in connection therewith, would lead to the mistaken belief that they originate from the same source.

These principles help frame the similarity of goods analysis. Are health drinks and sports apparel the type of goods that might be related in the mind of the consuming public and therefore lead to confusion? It’s possible.

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