Under Armour recently filed a
complaint against Armor & Glory, a Christian sportswear company in the
District Court of Maryland for trademark infringement. The alleged infringement?
Use of the word “Armor” in Armor & Glory’s name.
Trademark infringement claims are
based on the alleged unauthorized use of a unique identifier in connection with
goods. The identifier could be a word, a
logo, or even a fictional character like Batman or Mickey Mouse. In order for an infringement claim to
succeed, the claimant has to show that the alleged infringer is using the
identifier in a manner likely to confuse the public as to the source of the
goods. In considering the merit of such
claims, courts weigh factors like degree of similarity and relatedness of the
goods at issue.
In this case, Under Armour’s claim
is that the use of “Armor” in Armor & Glory’s name would likely cause
“confusion, mistake, and deception” and would “dilute the distinctiveness and
further damage and irreparably injure” Under Armor’s brand. Under Armour is
calling for Armor & Glory to destroy all products, hand over its domain
name and profits, and pay Under Armour’s attorney’s fees and damages of
$100,000 or more. Under Armour’s former trademark attorney guarantees that it
will be “an expensive and time-consuming legal battle.”
Over the last year, Under Armor
has been taking aggressive aim at a series of companies who include the work
“Armor” in their marketing. So far, they’ve sued Body Armor (a sports drink
company), Salt Armor (a Florida fishing apparel company), and Ass Armor (a
company that produces shock-absorbing snowboarding shorts). Armor & Glory
is the latest target.
There are two ways to view Under
Amour’s aggressive litigation strategy. One is as a David and Goliath battle
between a sportswear empire and a small niche business. One of the key components in a trademark
infringement case is consideration of whether consumers would be so confused
that they would conflate the two different companies together. In this case,
Armor & Glory specifically markets to a religious audience. They sell
shirts with slogans like “Be spiritually attractive” and “Put on God’s armor
and receive His glory.” It’s therefore perhaps a bit of a stretch to think that
consumers will suddenly believe that Under Armour has added a religious line to
its product catalog.
On the other hand, there is the
view that Under Armour is simply exercising its rights – and its duties – to
protect its intellectual property assets. As attorney Anna Isaacs notes in a
recent article,
Under Armour is trying to create space for its brand and send a message to
would-be freeloaders that if their products tread too close to the line, Under
Armour is not afraid to pursue litigation as a means of protecting itself.
Furthermore, Under Armour is hardly the only sports apparel company that uses such
litigation tactics; Under Armour has itself been sued by Nike and Adidas in the
past as part of those companies’ IP protection campaigns. As Ms. Isaacs notes,
overprotectiveness is common in the world of sports apparel. A lot of money and
research goes into creating product and building reputation. Thus, while going
after smaller companies like Armor & Glory may seem heavy-handed and,
potentially, dilatory from a financial standpoint, Under Armour’s strategy of
aggressively protecting its marks shows that it isn’t afraid stave off those
who get too close to its brand.
This litigation-reliant strategy
does raise the question of whether there is a better way to protect Under
Armour’s intellectual property rights without subjecting smaller companies to
the high costs of defense. While it makes sense to litigate against larger companies
like Nike and Adidas, a win against a little company like Armor and Glory could
be a pyrrhic victory for Under Armour. Such companies are small and sell to
such a specialized niche that battling them is unlikely to yield much gain. Yet
a willingness to go after even the small fry of the sportswear world certainly
demonstrates that Under Armour is not afraid to hold its own, and may make
other companies think twice before choosing names and branding campaigns that
stray too close to Under Armour’s marks.
Doan Phan is a law clerk with Berenzweig Leonard and a J.D. candidate
at the George Mason School of Law.
