Under Armour’s Enforcement Tactics: Heavy-Handed or Right on the Money?

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.

Winning Attorneys’ Fees in Patent Trolling Cases Just Got Easier

Patent trolling, the latest abuse of the laws enacted to protect intellectual property, occurs when a “patent troll” (sometimes euphemistically called a “patent assertion entity” or “non-practicing entity”) tries to generate revenue by enforcing patent rights against accused infringers, but does not manufacture products or provide services based on the patents it holds. Because patent trolls try to take advantage of businesses, an increased ability to recoup fees in litigation against trolls is an important development for any companies that productively use valuable intellectual property.

In most instances, the troll reaches out to the accused infringer, demanding a licensing fee for the use of its patent and threatening litigation if such fee is not paid, despite the fact that it has no intention of productively using the patent. Additionally, trolls sometimes stretch the limits of patentability, seeking to protect intentionally vague processes to maximize the number of would-be infringers and, consequently, the amount of revenue to be derived through licensing fees and litigation.

While patent cases traditionally followed the “American Rule” where parties paid their own attorneys’ fees regardless of outcome in all but the most “exceptional” cases, the Supreme Court’s recent decision in Octane Fitness, LLC v. Icon Health & Fitness, Inc. seems to have strengthened a company’s ability to obtain its attorneys’ fees from patent trolls. In its decision, the Supreme Court rejected the Federal Circuit’s old standard for what constituted an “exceptional” patent case, noting that it was “overly rigid” and “inflexible.” The Octane Fitness decision not only defined an “exceptional” patent case as one that “stands out from others with respect to the substantive strength of a party’s litigating position . . . or the unreasonable manner in which the case was litigated,” but also lowered the requirement of proving one’s entitlement to attorneys’ fees from “clear and convincing” to a “preponderance of the evidence” standard.

The first company to gain an edge in litigation following Octane Fitness is startup FindTheBest, a website that allows you to find a topic, compare your options, and select the best choice. FindTheBest was sued by Lumen View Technology, a patent troll seeking a $50,000 licensing fee for FindTheBest’s use of allegedly patented matchmaking technology. FindTheBest has argued both that it hasn’t infringed upon Lumen’s patent, and also that Lumen’s patent was invalid in the first place. Although a ruling has not come out in the FindTheBest case just yet, we may see the first application of the Supreme Court’s new definition of an “exceptional” patent litigation case, as well as an award of attorneys’ fees to FindTheBest.

Frank Gulino is an associate attorney at Berenzweig Leonard, LLP. He can be reached at fgulino@berenzweiglaw.com.