Apparel manufacturers joust over trademark. UNDER ARMOUR v. AGEAS

Trademark law is intended to protect consumers from being tricked into buying inferior quality goods. A trademark is something that a manufacturer uses to brand its products. Traditionally a trademark is considered a word phrase or symbol, but anything that signals to consumers the identity of the product manufacturer can be eligible for trademark protection. The first user of a trademark is referred to as the senior user, subsequent users are called junior users. Trademark law grants the senior user a trademark owner the exclusive right to brand its products with a trademark. If someone other than the trademark owner starts branding products with a trademark in a way that is likely to cause consumer confusion, that can be considered trademark infringement.

The key issue in trademark infringement is likelihood of consumer confusion. If the use of a trademark causes consumers to be confused about who produced a product that can be trademark infringement. When determining likelihood of confusion, courts review several factors, referred to as Polaroid factors, after the court case which introduced them. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961). Each circuit in the United States federal court system has a slightly different set of factors but the principles are essentially the same. The factors are: (1) Strength of the senior user’s mark, (2) Similarity of the marks, (3) Similarity of the products or services, (4) Likelihood that the senior user will expand their product line into the junior user’s product line, (5) The junior user’s intent in adopting the mark, (6) Evidence of actual confusion, (7) Sophistication of the buyers, and (8) Quality of the junior user’s products or services.

Two trademarks do not need to be identical for trademark infringement to occur. The purpose of the Polaroid factors is to give courts an objective test to determine when there is a likelihood of consumer confusion between two mark. Sometimes two trademarks can be similar and a court will decline to find trademark infringement has occurred, therefore it is helpful to study court cases to learn how a court applies the Polaroid factors.

UNDER ARMOUR, INC. v. AGEAS INC., 19-cv-02946 (D.C.MD 2019) is a case which involves similar but not identical trademarks. The plaintiff, Under Armour is a Maryland corporation. The plaintiff sells various types of sports equipment, fitness apparel, shoes and accessories. The plaintiff’s has sold billions of dollars’ worth of products, which are promoted, offered, and sold nationwide through a wide variety of retail means, including thousands of retail stores. The products sold by the plaintiff feature the plaintiff’s registered trademark with is reproduced above on the left. The trademark has been registered with the United States Patent and Trademark Office since 2001. The plaintiff’s trademarked products are promoted through high profile athletes and teams competing at the youth, collegiate, professional, and Olympic levels.

The defendant, Ageas is a Colorado corporation. The defendant also sells sports apparel like workout clothing, shoes, and accessories. The defendant first filed several trademark applications to register its trademark in 2017, the application claimed first use in commerce in 2016. The defendant’s trademark applications were opposed by the plaintiff, but the United States Patent and Trademark Office approved the applications for publication in September 2019.

The plaintiff then filed a complaint for trademark infringement. In its complaint the plaintiff claims that the defendant was not actually using its trademark in commerce at the time of the trademark application. The plaintiff claims that the defendant’s trademark constitutes trademark infringement because it is likely that consumers will confuse the defendant’s trademark with the plaintiff’s trademark. To bolster its argument the plaintiff notes that at least one consumer actual confused the defendant’s products for the plaintiff’s trademark in a review on the eCommerce site Amazon.

The defendant has not filed an answer yet. While it can be argued that the trademark are similar, it will come down to the Polaroid factors to determine whether trademark infringement has occurred.

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