Trademark infringement is not unheard of to Under Armour – although Under Armour is usually the one claiming infringement. The popular athletic company has brought several trademark infringement suits, including recent lawsuits against Puppy Armour, Inner Armour, Salt Armour and Ass Armour.
However, the tables recently turned when Under Armour filed a declaratory judgment action that it was not infringing. A declaratory judgment action is filed to clarify the legal rights of parties.
Under Armour filed the declaratory judgment action after receiving numerous cease and desist letters from Battle Fashions claiming that Under Armour’s phrases “I Can Do All Things” and “I Can. I Will.” infringe Battle Fashions’ trademark, “ICAN.” For more information on sending cease and desist letters and filing a declaratory judgment action see our previous blog, The Risk Associated with Cease and Desist Letters.
The phrase “I Can Do All Things” was derived from the Bible verse, Philippians 4:13 “I can do all things through Christ who strengthens me.” Under Armour-sponsored NBA player Steph Curry is known for writing this on his shoes.
According to the declaratory judgment lawsuit, following receipt of the cease and desist letters, Under Armour responded by explaining that it was using “I Can” as a part of affirmative and descriptive phrases, such as the phrase “I Can Do All Things” and “I Can. I Will.,” that the use was a fair use, that many third parties use similar phrases that begin with or focus on the words “I Can,” and that confusion is unlikely.
Although actual confusion is not necessary – a likelihood of confusion is necessary to succeed on a trademark infringement action. See our prior blog post, Is Pandora Paypal? for more information on the “likelihood of confusion” factors that the Fourth Circuit articulated in George & Co. LLC v. Imagination Ent. Ltd., 575 F. 3d 383 (4th Cir. 2009).
Battle Fashions has not yet responded, but if they do respond they will likely file a counter-claim for trademark infringement.
If you need help understanding your trademark rights or determining whether your trademark is being infringed, Goodell DeVries can help. Contact Jim Astrachan at 410-783-3550 (email@example.com) or Kaitlin Corey at 410-783-3526 (firstname.lastname@example.org).