{"id":4724,"date":"2025-01-13T16:59:40","date_gmt":"2025-01-13T16:59:40","guid":{"rendered":"https:\/\/blogs.luc.edu\/ipbytes\/?p=4724"},"modified":"2025-01-30T23:14:19","modified_gmt":"2025-01-30T23:14:19","slug":"gridiron-to-courtroom-who-owns-8","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/ipbytes\/gridiron-to-courtroom-who-owns-8\/","title":{"rendered":"GRIDIRON TO COURTROOM: WHO OWNS \u201c8\u201d?"},"content":{"rendered":"

When two NFL quarterbacks battle for control, fans typically expect a showdown on the field. But what happens when the competition moves from the gridiron<\/a> to the courtroom?<\/p>\n

The trademark dispute between Troy Aikman and Lamar Jackson offers a fascinating glimpse into the world of intellectual property law, where athletes strive to protect their brands through trademarks. Whether you’re a Ravens fan, a Cowboys supporter, or an intellectual property enthusiast, this case illustrates the intersection of branding, identity, and legal conflict.<\/p>\n

Consider this a playbook to understanding the legal game behind the \u201c8.\u201d<\/p>\n

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Mick Haupt on Unsplash (cropped).<\/em><\/figcaption><\/figure>\n
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the_tuba_guy on Flickr (cropped).<\/em><\/figcaption><\/figure>\n

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Deb8 Over the 8<\/strong><\/p>\n

Troy Aikman<\/a>, NFL Hall of Fame quarterback, played twelve seasons for the Dallas Cowboys and wore the number 8 his entire career. In May 2023, Aikman and his company, FL101, Inc., filed a trademark application (serial no. 97931236<\/a>) for the word \u201ceight\u201d to be used on clothing associated with his name and brands.<\/p>\n

Another quarterback, and likely future Hall of Famer himself, Lamar Jackson<\/a>, was not pleased to hear this news. Jackson has played in the League for the Baltimore Ravens for seven years and counting, and he too wears number 8 on the field. Jackson built his own brand around the number and holds three registered marks related to the number \u201c8.\u201d<\/p>\n

In May 2022, Jackson registered \u201cYou 8 Yet?<\/a>\u201d for his restaurant Play Action Soul Food and More!<\/a> located in his hometown of Pompano Beach, Florida. Earlier in May 2019, Jackson registered \u201c2018 Era 8 by Lamar Jackson 2018<\/a>\u201d and \u201cEra 8<\/a>\u201d for his clothing line, Era 8 Apparel<\/a>.<\/p>\n

In July 2024, Jackson filed an opposition action<\/a> against Aikman\u2019s trademark application, arguing that Aikman\u2019s use of \u201ceight\u201d could confuse consumers due to Jackson\u2019s prior use of similar marks in similar markets.<\/p>\n

To understand what the opposition action is and what it may mean for Aikman, let\u2019s break down the world of trademarks, registration, and the opposition process.<\/p>\n

<\/p>\n

The X\u2019s and O\u2019s of Trademark Law<\/strong><\/p>\n

What is a trademark and what does it do?<\/em><\/p>\n

A trademark<\/a> is any word, name, symbol, device, or combination thereof that identifies one\u2019s goods or services. Trademarks help consumers recognize brands and foster trust in the quality of the goods or services they provide. Trademarks owners have the right to use their mark and they are protected against unauthorized use by others that is likely to cause confusion amongst consumers.<\/p>\n

While trademark owners do not need to register their marks to enforce their rights against unauthorized users, registration confers many benefits. Registering a trademark provides constructive notice<\/a> to others of the owner\u2019s rights\u2014in other words, people are presumed to have done their research. Registration also establishes a presumption of validity, making it easier to sue wrongdoers anywhere in the U.S.<\/p>\n

Without registration, mark owners can still own a valid trademark used with a good or service. \u00a0Thus, they can still sue others for using a similar mark that causes confusion as to the source of the goods or services.<\/p>\n

The Process of Trademark Registration<\/em><\/p>\n

The United States Patent and Trademark Office (USPTO<\/a>) reviews trademark applications and approves marks that are distinctive enough to identify the source of goods or services in the eyes of consumers if there is also no additional statutory bar.<\/p>\n

In reviewing the application, the USPTO determines if the mark is distinctive, and then whether the application conflicts with an existing mark. Distinctiveness<\/a> is a spectrum where some marks are inherently distinctive and identify the source of a particular good or service against others in the marketplace from their first day in use; those marks are categorized as fanciful, arbitrary, or suggestive. Descriptive marks are not inherently distinctive because they describe a characteristic of the good or service and require proof of \u201csecondary meaning<\/a>\u201d\u2013\u2013consumer association of the mark with the source\u2013\u2013to be valid. Generic words are never valid because they are common for a class of goods or services (i.e., \u201cclock\u201d for timepieces).<\/p>\n

If the USPTO finds no issues with an application, others can still oppose the mark\u2019s registration. When the USPTO approves a mark, it is published in the Trademark Official Gazette<\/a>, a collection of pending marks. Within 30 days, any third-party who believes they will be harmed by the registration can object to the pending trademark application by filing an opposition action<\/a>.<\/p>\n

Common grounds for opposition include descriptiveness<\/em>, the mark lacks distinctiveness; dilution<\/em>, the applied-for mark may weaken the distinctiveness of an existing AND FAMOUS mark; and most frequently, likelihood of confusion<\/em>, the applied-for mark is too similar to an existing mark thus creating likely consumer confusion.<\/p>\n

Likelihood of Confusion<\/em><\/p>\n

Likelihood of confusion<\/a> measures whether consumers would mistakenly believe that goods or services from different sources are connected to one another. The same multi-factor test is used to analyze likelihood of confusion in both opposition and infringement proceedings. Courts, including the TTAB, assess factors such as: (1) strength of the opposer\/plaintiff\u2019s mark\u2013\u2013how distinctive and well-known it is, (2) similarity of the marks, (3) relatedness of the goods or services and manner of marketing, (4) whether the alleged infringer intended to use a similar mark to cause confusion, (5) the degree of care exercised by consumers in differentiating the marks, and (6) evidence of actual confusion.<\/p>\n

Like many who oppose trademark applications, Jackson\u2019s grounds<\/a> for opposition were based in likelihood of confusion.<\/p>\n

Opposition vs. Infringement<\/em><\/p>\n

Even though opposition and infringement may use the same likelihood of confusion test, the possible outcomes are quite different. A successful opposition action prevents trademark registration but does not bar the applicant from using the mark. In such a case, the registrant forfeits the benefits of registration and remains vulnerable to later litigation, including infringement claims by the opposer or others.<\/p>\n

In contrast, a trademark infringement<\/a> lawsuit\u2013\u2013which can also follow a failed opposition action\u2013\u2013seeks to prohibit the defendant\u2019s use of the mark in commerce. Trademark infringement suits carry steep penalties, including possible injunctions<\/a> preventing the defendant from using the mark on goods or services in commerce. To succeed, the plaintiff must prove the mark\u2019s validity, the defendant\u2019s use of the mark in commerce, and that the defendant\u2019s use is likely to cause consumer confusion\u2014returning to the likelihood of confusion test similarly used during opposition proceedings.<\/p>\n

With these principles in mind, let\u2019s break down how the legal battle over \u201ceight\u201d may play out on the field.<\/p>\n

<\/strong><\/p>\n

Play-by-Play Breakdown of the \u201c8\u201d<\/strong><\/p>\n

Who\u2019s right and who\u2019s wrong? Who will prevail in this legal battle?<\/p>\n

Likelihood of Confusion Test<\/em><\/p>\n

In the case of Aikman\u2019s application for \u201ceight,\u201d Jackson\u2019s opposition centers on the likelihood of confusion. In assessing their likelihood of confusion, the similarity of the two marks, the relatedness of the goods, and the strength of Jackson\u2019s mark appear most relevant (factors 1-3 above).<\/p>\n

Similarity of the Marks<\/em><\/p>\n

Looking at the factors, Jackson may argue the marks are too similar (factor 2 above). When evaluating the similarity of the marks, the focus is on their appearance, sound, and meaning.<\/p>\n

While both Jackson\u2019s and Aikman\u2019s marks involve the number \u201c8,\u201d there are notable differences which may favor Aikman. Jackson\u2019s marks (\u201cYou 8 Yet?\u201d and \u201cEra 8\u201d) include additional elements\u2014a playful dining pun and a reference to his athletic career\u2014that provide distinct contexts beyond the numeral. In contrast, Aikman\u2019s \u201ceight\u201d is a standalone term. Thus, the marks are arguably dissimilar in sight as the overlap of \u201c8\u201d is the only commonality.<\/p>\n

Though both quarterbacks use \u201c8\u201d in their marks, the meaning of each mark is not the same. Jackson\u2019s \u201cYou 8 yet?\u201d is meant to ask the question as to whether someone is hungry, as a pun in reference to \u201cate\u201d in the context of his restaurant. In his \u201cEra 8\u201d mark, the meaning refers to the legacy of Jackson\u2019s era while wearing the number \u201c8\u201d on the football field.<\/p>\n

Comparably, in Aikman\u2019s \u201c8\u201d the meaning inherently refers to the numeral, one more than seven. However, like Jackson, Aikman also wore the number 8 on the field and his mark\u2019s meaning alludes to his identity wearing \u201c8\u201d for the Cowboys. Thus, there is some overlap in meaning with Aikman\u2019s \u201c8\u201d and Jackson\u2019s \u201cEra 8,\u201d especially in the context of clothing and how both marks will appear side-by-side in the marketplace.<\/p>\n

From an auditory perspective, while the \u201c8\u201d is pronounced the same in both marks, the marks sound very different when Jackson\u2019s are read aloud in their entirety. The distinct contexts and surrounding words in Jackson\u2019s marks differentiate them further, so that the marks are dissimilar in sound.<\/p>\n

Thus, the marks are not likely to be confused when analyzed holistically, considering their different visual, auditory, and conceptual frameworks.<\/p>\n

Relatedness of Goods and Marketing<\/em><\/p>\n

Additionally, Jackson appears to have a strong case when examining the overlap in markets and similarity of the goods (factor 3 above). Jackson already uses both of his \u201cEra 8\u201d and \u201cYou 8 yet?\u201d marks on athletic bags and clothing, such as sweatshirts, t-shirts, hats, jackets, and accessories available for sale on his website. According to his trademark application<\/a>, Aikman also intends to use his mark on clothing. The overlap in the clothing industry is a substantial similarity of goods, which weighs in favor of confusion for Jackson.<\/p>\n

Strengths of the Plaintiff\/Opposer\u2019s Mark<\/em><\/p>\n

The strength of Jackson\u2019s marks (factor 1) lies in their inherent distinctiveness, secondary meaning, and the connection to their respective goods. \u201cEra 8\u201d is inherently arbitrary for clothing. The term \u201cEra\u201d does not describe or suggest any qualities of apparel, and its combination with \u201c8\u201d creates a distinctive brand identifier tied to Jackson\u2019s legacy. This distinctiveness is reinforced by its use on merchandise like bags, t-shirts, and hats, which are associated directly with Jackson\u2019s personal brand.<\/p>\n

\u201cYou 8 Yet?\u201d is suggestive, leveraging a pun on \u201ceight\u201d and \u201cate\u201d to reference dining, aligning with the restaurant\u2019s purpose. This playful phrasing makes the mark contextually relevant, strengthening its connection to Jackson\u2019s brand.<\/p>\n

Both marks incorporate creative elements beyond the numeral \u201c8,\u201d enhancing their distinctiveness and strengthening their function as unique identifiers of Jackson\u2019s brand. Their strength in conception and the marketplace weigh in favor of Jackson.<\/p>\n

Sophistication of Consumers<\/em><\/p>\n

The sophistication of consumers (factor 5 above) may vary depending on the target audience. For fans of Jackson and Aikman, there is an argument that these consumers are more discerning in their buying choices and purchase goods tied to their preferred athlete\u2019s identity. Aikman\u2019s Hall of Fame legacy appeals to Dallas Cowboy fans and nostalgia-drive consumers, while Jackson\u2019s marks target a younger, active fanbase aligned with his current career. Fans are likely to pay closer attention to branding and identity, reducing the likelihood of confusion between the marks.<\/p>\n

However, this level of sophistication may not apply to all consumers. For individuals less familiar with professional football or the athletes\u2019 personal brands, the distinction between the marks is likely not obvious. For instance, a casual consumer might not immediately associate \u201cEra 8\u201d with Jackson\u2019s athletic career or recognize Aikman\u2019s use of \u201ceight\u201d as part of his legacy branding.<\/p>\n

By acknowledging that fan consumers may demonstrate greater sophistication while non-fans may lack the same level of brand awareness, this factor introduces nuance to the likelihood of confusion analysis. Ultimately, the potential for confusion here may hinge on whether the goods are marketed specifically to fans or to a broader audience.<\/p>\n

Furthermore, it appears that Aikman has no bad intent to cause confusion with Jackson (factor 4 above), but rather his marks are tied to his own personal brand.<\/p>\n

Balancing the Factors<\/em><\/p>\n

The likelihood of confusion is determining by balancing several factors, with the similarity of the marks, the strength of Jackson\u2019s marks, and the relatedness of the goods being particularly relevant here. While both parties use the number \u201c8\u201d as a central element, Jackson\u2019s marks are more distinctive due to their creative phrasing and established association with his personal brand. The overlap in the goods\u2014clothing\u2014also weighs in Jackson\u2019s favor, as both parties target similar markets and consumers.<\/p>\n

<\/div>\n

However, Aikman may argue that the simplicity of his \u201ceight\u201d mark, combined with the context-specific nature of its use, reduces the likelihood of confusion. Fans of each athlete may also exercise greater care in differentiating goods tied to their preferred athlete, further mitigating confusion.<\/p>\n

Ultimately, while Jackson\u2019s marks are strong and their established use in similar markets bolsters his case, the TTAB\u2019s decision will likely hinge on the overall likelihood of consumer confusion. Even though the marks are not identical, their similarities, particularly in shared markets, could tip the balance in Jackson\u2019s favor.<\/p>\n

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Original drawing by Taylor Lores.<\/em><\/figcaption><\/figure>\n

In this match-up, the likelihood of confusion functions as the referee, calling fouls and throwing flags on branding plays that mislead consumers. While Jackson and Aikman may run different plays than those called in the huddle, their possible arguments appear to be solid strategies to advance the ball in their favor.<\/p>\n

The Final Whistle<\/strong><\/p>\n

Even if Jackson\u2019s opposition is successful, Aikman can still use \u201ceight\u201d in commerce, though he would lose the benefits of federal registration. In that scenario, if Jackson is still unsatisfied and believes Aikman\u2019s use in the same geographical regions is likely to cause confusion amongst consumers, he could file a trademark infringement suit against Aikman.<\/p>\n

Conversely, if the opposition fails, Jackson can still pursue a trademark infringement suit, where the same confusion factors would apply, but the stakes\u2014including the possibility of an injunction\u2014would be higher.<\/p>\n

This legal battle showcases how trademarks are more than just symbols; they represent identity, reputation, and economic value. As Aikman and Jackson duel in this trademark arena, one thing is certain: the intersection of sports and intellectual property law has fans\u2014and legal professionals\u2014on the edge of their seats.<\/p>\n

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Taylor Lores<\/em>
\nAssociate Blogger<\/em>
\nLoyola University Chicago School of Law, J.D. 2026<\/em><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

When two NFL quarterbacks battle for control, fans typically expect a showdown on the field. But what happens when the competition moves from the gridiron to the courtroom? The trademark dispute between Troy Aikman and Lamar Jackson offers a fascinating glimpse into the world of intellectual property law, where athletes strive to protect their brands through trademarks. Whether you’re a Ravens fan, a Cowboys supporter, … Continue reading GRIDIRON TO COURTROOM: WHO OWNS \u201c8\u201d?<\/span><\/a><\/p>\n","protected":false},"author":82,"featured_media":4735,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[262,319,421,423,332],"class_list":["post-4724","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-trademarks","tag-registered-trademark","tag-trademark","tag-trademark-application","tag-trademark-opposition","tag-united-states-patent-and-trademark-office"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/4724","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/users\/82"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/comments?post=4724"}],"version-history":[{"count":8,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/4724\/revisions"}],"predecessor-version":[{"id":4751,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/4724\/revisions\/4751"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media\/4735"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media?parent=4724"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/categories?post=4724"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/tags?post=4724"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}