Earlier this year, on April 26, 2012, Under Armour sued Body Armor Nutrition for trademark infringement in the United States Federal District Court for the District of Maryland.
In the Answer filed by Body Armor on July 12, 2012, there is a concerted attempt to make this case look like it is a classic trademark bullying matter. The “Preliminary Statement” begins with that theme and sets the tone: “This lawsuit is a prime example of trademark bullying by a corporate giant seeking to stifle an innovative start-up company.” The Answer goes on to say: “Under Armour’s claim against BODYARMOR is without merit. It is impossible that consumers or retailers of either brand would confuse the two. Under Armour and BODYARMOR operate in disparate industries, produce distinctly unrelated products, and share no branding or logo similarities.”
But is that true? At the end of the day Under Armour may lose, but is this really a case of trademark bullying? We all know that these types of bullying cases do exist, and many a large entity will use their power and might to push around small companies. That disgusts me when I see it, but I don’t think that is what what is happening here.
Under Armour is one of the world’s most successful, popular and well-known providers of performance apparel, footwear, accessories and sporting goods. The company is perhaps most well known for their aggressive use of athlete endorsers, such as Michael Phelps, Cam Newton, Tom Brady, Lindsey Vonn, Bryce Harper and others. They offer many different products, engage in massive advertising campaigns and it is difficult to imagine that anyone involved in sports in the U.S. or who is a fan of sports in the U.S. wouldn’t know Under Armour. Indeed, according to the Complaint filed by Under Armour, “Under Armour has spent over $100 million annually on marketing and promotional activities.”
In about January 2012, Body Armor adopted the trademark BODYARMOR® for a line of nutritional beverages. The question will likely ultimately become whether there is significant cross-over between what Under Armour is doing and what Body Armor offers. At least at first glance it seems that there is more to this than Body Armor may want to admit.
According to the Complaint, “As part of its natural zone of expansion, Under Armour began offering bottled water in connection with its UNDER ARMOUR and UA Logo marks at least as early as March 2005.” Additionally, the Complaint goes on to point out that “Under Armour owns federal trademark registrations for the UNDER ARMOUR and UA Logo marks for bottled water…” Still further:
Under Armour also owns pending applications for the UNDER ARMOUR and UA Logo marks for carbonated waters; drinking water; drinking water with vitamins; energy drinks; flavored bottled water; herbal juices; isotonic beverages; isotonic drinks; sports drinks and vitamin fortified beverages; protein supplements in the form of beverages; nutritionally fortified beverages, nutritional drinks used for meal replacement; meal replacement drinks; dietary supplemental drinks; dietary supplemental drinks in the nature of vitamin and mineral beverages.
Therefore, while Body Armor may want to try and make this into a trademark bullying matter, it seems that Under Armour and Body Armor do operate in the same space, which is not a good fact for the second comer — Body Armor.
Lance Collins, Founder and CEO of BODYARMOR® SuperDrink™, said, “It came as a surprise that a large multi-national company focused on athletic apparel would use company resources to attack a start-up company in the beverage industry. We registered the BODYARMOR® trademark with the United States Patent & Trademark Office without ever receiving any objection from Under Armour. The fact that Under Armour is just now bringing this suit, more than five years after we applied for our trademark, further demonstrates that their claims are entirely meritless. We’ve even commissioned a scientific consumer perception survey which confirms that our product is not causing consumer confusion.”
Granted, it is a little odd perhaps that Under Armour did not oppose the BODYARMOR® trademark, which they could have. What is missing from Collins’ tale, however, is that there is no requirement that Under Armour challenge the trademark in an Opposition Proceeding. Under Armour can still challenge the trademark once it is issued, although it does become more difficult to do so — but certainly not impossible.
Of course, with these types of lawsuits they frequently, if not nearly exclusively, boil down to what the survey shows. The first issue will be whether the survey is a good one, meaning were the questions appropriate and not leading and did the relevant consumers make up the survey sample, among other things.
Still, it seems a little reckless to me to select a trademark that incorporates “ARMOR” or “ARMOUR” when entering an industry that has a heavyweight such as Under Armour with a large trademark portfolio and the means to enforce that portfolio. Is the name BODYARMOR so critical to the success of the company and selling their drinks? I doubt it. So then why run the risk of incurring the wrath of a well funded and well known trademark owner? It just doesn’t make business sense if you ask me. That is why I always advise companies to consider doing a rather exhaustive trademark search and obtaining an opinion from an attorney prior to spending money on adverting and marketing campaigns.
It is ALWAYS cheaper to pick a safe name than it is to pick one that is too close and results in a serious challenge. If Body Armor loses this trademark fight they will have to reset and start from scratch with marketing, getting a new domain name and so much more. Even just reprinting letterhead and business cards is an expensive proposition, which is why getting trademark matters right from the earliest point is so critical.
Michael Repole, Chairman of Body Armor says that the companies is “fortunate… to have the financial resources and expertise to fight this ridiculous claim and not back down.” Talk like that is going to make his attorneys rich. The claim is not ridiculous and certainly not frivolous, and if I were a betting man I would have to say that based on what I have seen so far I would place the early odds at 65-35 in favor of Under Armour.
The trouble with the posturing by Body Armor is that it fits into an important narrative. The abusive large company taking advantage of and pushing around a smaller, innovative start-up company. No one likes that. But when wolf is cried there really ought to be a wolf present. I just don’t see a wolf here. I see a legitimate case that could come out either way at the end of the day. That hardly suggests a ridiculous, frivolous and anti-competitive Complaint.
These types of cases have a way of going away quickly, frequently after the District Court rules on any requested preliminary injunction. I do not see in the Docket Report on PACER where Under Armour has requested a preliminary injunction. I wouldn’t read too much into that though. Asking for a preliminary injunction and losing is typically very bad, so rather than put all their eggs in one basket Under Armour may have just decided to stay for the long haul with this case and go the distance. It could signal that they think their case is weak, but I suspect they consider their case strong, but perhaps not a clear-cut slam dunk that would result in a preliminary injunction.
As with all these types of battles it will likely get more interesting. Stay tuned.