Nike Goes to War With Naval Academy

Recently Nike Inc. came under fire for trademark infringement for adopting as a clothing logo an emblem that is almost identical to that of the United States Naval Academy, owner of a trademark for that design. The United States Naval Academy owns trademark registration number 4197000 for its ornamental shield topped with a trident for “educational services,” “physical education services” and “conducting live football, basketball, and baseball games at the university level for broadcast over the media.”

I’m not sure what genius at Nike thought that was a good idea, either from a legal standpoint or a public relations standpoint, but I’ve seen so much of this type of thing that nothing surprises me anymore. I’ll calm my moral outrage for the moment and just give an analysis of why it’s legally wrong to do so.

Trademark infringement is any copying of the trademark or trade dress of another entity that is likely to cause a consumer to be confused about the source of the goods and services. In order to infringe, it is not necessary that the goods be identical. It’s not necessary for the mark to be identical. It’s not necessary to prove actual instances of consumer confusion. All that is necessary is to show that consumer confusion is “likely.”

When deciding instances of consumer confusion, we always look at the goods in the context of the consumer experience in the marketplace. The Naval Academy owns the mark for, among other things, “conducting live football, basketball, and baseball games.” Those who conduct live sports contests commonly have their own line of athletic wear. So if Nike uses a similar symbol on it’s athletic wear, consumers of Nike’s products might think that the Naval Academy and Nike have some sort of association, and that maybe Nike is producing gear for the Naval Academy, because it’s common practice in the industry and for Nike in particular to have relationships with college and university sports teams. Indeed, Nike has relationships with many kinds of sports teams at many different levels.

If it leaves doubt or a question in the mind of the consumer, then bingo! We have a likelihood of confusion. Time to make Nike walk the trademark plank! Lash them to the yardarm! Well. As it turns out, such measures were not necessary, as Nike conceded defeat without the Naval Academy firing a shot. Radio Station WJZ in Baltimore caught wind of Nike’s plans, and tweeted the Naval Academy’s logo and the offending copy side by side, prompting Nike to withdraw use of the logo for its clothing line, no shot across the bow necessary.

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