Game Plan Inc., a Maryland based nonprofit organization focused on the development of America’s youth, has filed a lawsuit against NBA superstar LeBron James’ media company (Uninterrupted LLC), Nike Inc., ESPN and Take-Two Interactive Software, Inc. for trademark infringement over the use of the phrase I AM MORE THAN AN ATHLETE.
According to the complaint, Game Plan Inc., is a 501(c)(3) organization “dedicated to enhancing, informing, and educating the youth to ascend through the ranks of high school and college athletics and academics in order to attain professional level success whether in sports or otherwise.” It owns federal trademark registration #5487497 for I AM MORE THAN AN ATHLETE. GP GAMEPLAN
This application was filed in December of 2016 and registered as a trademark in June of 2018 covering “charitable fundraising services by means of selling t-shirts to raise funds or educational and entertainment programs.”
Game Plan states that on October 8, 2017, a group of Game Plan participants attended an NBA game between the Washington Wizards and the Cleveland Cavaliers, the team LeBron James played for at the time. During that match, Game Plan participants were wearing black t-shirts with large white font depicting their trademark. Prior to the game, they were able to meet NBA players, including Washington’s All Star point guard, John Wall. Although he wasn’t playing in the game, James was in attendance, and according to Game Plan, surely saw the mark being used.
The phrase gained popularity when James responded to journalist Laura Ingraham’s statement that he should not talk politics and should just “shut up and dribble.” On February 16, 2018, James posted a picture of a neon I AM MORE THAN AN ATHLETE sign and the hashtag #wewillnotshutupanddribble. Since then, LeBron has entered into deals with Nike to sell merchandise and apparel with the phrase, ESPN has aired footage with the phrase, and Take-Two Interactive uses the neon sign and phrase in its extremely popular NBA 2K video game.
Now, Game Plan is seeking $33 million in damages for the alleged infringement. In a statement, Uninterrupted said:
“The complaint filed by Game Plan today is meritless and contains numerous factual inaccuracies,” the company said. “Uninterrupted owns prior rights in and to the More Than An Athlete trademark.
UNINTERRUPTED TRADEMARKS AND OPPOSITIONS
One thing we can look to in order to get some more of the story is the prosecution history of trademark applications. Here, Uninterrupted submitted a number of trademark applications in March of 2018 for the phrase covering a variety of goods and services as shown below:
| SERIAL # | MARK | GOODS/SERVICES |
| 87/828,960 | I AM MORE THAN AN ATHLETE | Entertainment services, namely, providing a website featuring non-downloadable videos, podcasts, films and social media posts in the field of sports |
| 87/828,964 | I AM MORE THAN AN ATHLETE | clothing, namely, t-shirts, sweatshirts, hats, and jackets |
| 87/828,965 | I AM MORE THAN AN ATHLETE & Design | clothing, namely, t-shirts, sweatshirts, hats, and jackets |
| 87/828,966 | I AM MORE THAN AN ATHLETE & Design | Entertainment services, namely, providing a website featuring non-downloadable videos, podcasts, films and social media posts in the field of sports |
| 87/836,358 | MORE THAN AN ATHLETE | clothing, namely, t-shirts, sweatshirts, hats, and jackets |
| 87/836,363 | MORE THAN AN ATHLETE | Entertainment services, namely, providing a website featuring non-downloadable videos, podcasts, films and social media posts in the field of sports |
Game Plan, however, filed a trademark opposition to all of Uninterrupted’s applications after the United States Patent and Trademark Office (“USPTO”) approved them.
WHEN CAN SOMEONE FILE A TRADEMARK OPPOSITION?
Upon approval of a trademark by the USPTO, each application enters into an opposition period where third parties may oppose the registration of the mark if they feel they would be damaged if the mark were to register.
Here, Game Plan filed an opposition to the marks in November of 2018, which is still pending. We won’t get into all of the specifics of the opposition, but a quick look into the responses submitted by Uninterrupted in the opposition clarifies their statement of owning prior rights to the MORE THAN AN ATHLETE trademark when responding the federal lawsuit filed.
PRIOR RIGHTS
On February 22, 2019, Uninterrupted purchased all the rights to a trademark registration owned by More Than an Athlete, Inc. This registration was filed on April 27, 2012 and registered as a trademark on May 28, 2013 covering “publicity and sales promotion services.” As you can see, this registration actually predates Game Plan’s, but it was also acquired by Uninterrupted after the oppositions to its trademarks were filed. Based on the most recent filing in the opposition proceeding, Game Plan claims that this is actually an admission of infringement.
It’ll be interested to see how this one plays out and whether or not the acquisition of these rights, among other things, is enough for Uninterrupted to dismiss this case.
