Athlete’s Trade Dress
Wondering what “trade dress” is? Basically, it means packaging. Like trademarks, its purpose is to signify the source of goods or services. Trade dress means more in sports. A sports team’s trade dress can include its uniforms, official team colors, the font used to spell its name, and its mascot.
So what if someone changes these trade dress elements, can you avoid getting sued for trademark infringement if you make a product, or 1) change the font of the team’s name’s letters, or 2) blur the image of the team name, or 3) use your own drawing of the team mascot instead of the official one, or 4) leave out the team name and just use the city, or 5) use slightly different team colors, or 6) change the order of these identifying indicia, or 7) use team names without cities/states, or 8) just make a small but significant change in _____, or 9) make a product the team doesn’t sell, etc. etc. etc. etc.
All those things comprise the team’s “trade dress,” and ANYTHING associated with the teams/leagues are part of the team’s and league’s trademark rights. No matter what clever variation you can think of, the answer remains the same: INFRINGEMENT DOESN’T REQUIRE EXACT COPYING. If consumers are likely to be confused about the source of your goods or services and think they’re that of the official team’s, then you’re committing trademark infringement and “unfair competition.” Unfair competition law has a “catch-all” provision that expressly acknowledges that human ingenuity can’t be predicted, so it’s vague about which acts are illegal. But the bottom line is that any scheme designed to circumvent the law protecting IP rights holders is prohibited.
Trademark infringement is punishable by up to $2M per infringed mark, plus injunctive relief, plus destruction of inventory. It’s literally a federal lawsuit, and not a minor offense.