Lamar Jackson Takes His Fight Over ‘Eight’ Trademark To Dale Earnhardt Jr.
Last year, we discussed Baltimore Ravens QB Lamar Jackson’s opposition to a trademark application from retired Hall of Fame QB Troy Aikman for the word and number “Eight.” While these sorts of oppositions don’t traditionally see us caping for them, this case was a bit different. Jackson’s registered trademarks were not merely for the term or number “eight”, but rather for much more unique trademarks that incorporate the number. An example would be Jackson’s registered mark “Era 8 by Lamar Jackson.” With the additional branding in the mark, it moves from something generic into something that instead functions well as a source identifier. Aikman’s mark, on the other hand, did no such thing.
But Aikman isn’t the only sports figure seeking the generic trademark. Dale Earnhardt Jr., who famously drove the number eight car in NASCAR, also applied last year for a trademark on the number 8. As with Aikman, Jackson has filed an opposition to that trademark, arguing that the generic mark would infringe on his much more detailed trademark.
Jackson has challenged the trademark claim, with his attorneys filing a notice of opposition with the U.S. Patent and Trademark Office. The notice states that Dale Jr. uses a slanted font similar to Jackson’s “Era 8” brand. This would lead potential customers to “mistakenly believe the products [Earnhardt Jr.] offers under the mark 8 are related to the products and services provided by [Jackson],” The Athletic quoted Jackson’s filing.
According to trademark attorney Josh Gerben, Jackson has challenged the claim on the basis of his own trademark registrations for ‘ERA 8’ and ‘ERA 8 BY LAMAR JACKSON.’
Again, these type of restrictive trademark actions generally result in a sneer from this writer. But the problem here isn’t that Jackson is being overly aggressive. And, while I hesitate to agree that there will be real widespread customer confusion between gear for NASCAR fans and NFL fans, any chance of that confusion is born of the uncreative and generic nature of the trademark Dale Jr. is seeking. If the application was for “8 by Dale Jr.” or “The #8 Car” and Jackson still opposed it, I’d be on the other side of the argument. But a mark for merely the number eight introduces a much higher chance for confusion than those other examples.
The Aikman case is still pending as Jackson launches this battle on another front, but both are fairly important for the intersection of trademarks and sports. Cars and athletes largely wear number identifiers, which are replicated across other athletes, other than when specific teams retire numbers. Allowing every athlete to trademark their jersey number, for instance, would end very badly and very quickly.
Why should this be any different?