For the non-sports loving crowd out there, here is something of a necessary primer. Lamar Jackson is the reigning MVP of the National Football League. He plays for the Baltimore Ravens and wears number eight. Troy Aikman is a hall of fame former NFL quarterback that played for the Dallas Cowboys and wore, you guessed it, number eight. Plenty of other athletes in the NFL and entirely different leagues have famously worn the number eight, including Steve Young in the NFL, or Kobe Bryant in the NBA.
Great, now that we’re done with primer, we can talk about the absurdity that is Lamar Jackson and Troy Aikman duking it out at the USPTO over Aikman’s attempt to trademark “EIGHT” for apparel, consumables, energy drinks, and other categories.
The Baltimore Ravens quarterback, through his attorney, has filed two appeals to the trademark office against FL101, a company that lists Aikman as one of its directors in SEC filings, targeting its use of “Eight” on apparel and bags. FL101 is listed as the owner of nine trademark applications for the use of “Eight” on a variety of consumer products, including beer, beach towels and energy drinks.
Jackson “has expended considerable time, effort, and expense in promoting, advertising, and popularizing the number 8 in connection with his personality and fame” and “is well-known by this number due to his notoriety and fame, along with his promotion of this number in his trademarks and in media coverage,” according to the appeals.
Now, I want to be careful about this, lest anyone think that both sides in this are behaving equally absurdly. Jackson’s trademarks that he has that relate to the number “eight” are far more targeted and unique than Aikman’s, full stop. They include marks for “Era 8 by Lamar Jackson”, “You 8 Yet?”, and “2018 Era 8 by Lamar Jackson 2018.” I would consider all of those either unique enough to act as a source identifier, or trademarks that specifically call out the source, Lamar Jackson, so as to be valid trademarks. Aikman’s application is the main problem here, as are responses like this one in the ESPN article linked above.
“Some of the instant reaction is, like, how can you own a number?” Christine Farley, a law professor and intellectual property expert at American University, said. “The truth is you can own almost anything you think of as a trademark.
“You can own a smell. You can own a sound. You can own a single color. You can own a single number.”
A statement like that is so devoid of nuance that it should immediately be questioned. You can trademark all kinds of simple things as mentioned above, but only if the use is non-generic, non-descriptive, and acts as a valid identifier of source for a good or service in its use. The quote above makes it sound like, hey, if you get to it first, you can lock up simple language in any way you like with a trademark. That simply isn’t true.
And the USPTO should know it isn’t true. I don’t know what the motivation is behind Jackson’s opposition is, but if it’s protecting his more targeted marks against a much more generic one, that’s a good thing. But it’s a good thing that shouldn’t have to happen, because the USPTO should be able to discern that the concept of an athlete locking up his playing number for categories like apparel and energy drinks is absurd. There are lots of famous athletes that have made their playing numbers famous. Hell, even Michael Jordan, infinitely more famous than either of these two athletes, only has his famous “23” number trademarked for things like restaurants, keychains, and memorabilia.
As one sports journalist put it regarding this whole dispute:
The fact remains: one extremely rich person bringing legal action against another extremely rich person over who and how one can profit from a number that is ubiquitous in, like, everything quantifiable, is the legal nadir of society. We’ve trademarked too much stuff, guys. Trademarks have jumped the shark.
Yes, trademarks have jumped the shark.
