NFL quarterbacks are known for going head to head on the gridiron, but two of the NFL’s top QB’s are now squaring off in the trademark arena. Earlier this month, Lamar Jackson filed two oppositions against FL101, a company associated with Troy Aikman, for its applications to register the mark EIGHT in connection with various clothing and luggage items. Aikman wore the number 8 while playing for the Dallas Cowboys, and Jackson currently wears the number 8 for the Baltimore Ravens.

In his oppositions, Jackson argues that FL101’s applications for EIGHT are likely to be confused with his registered trademarks for YOU 8 YET? and 2018 ERA 8 BY LAMAR JACKSON 2018 and Design, and his prior-filed applications and common law rights in the marks ERA 8 and ERA 8 BY LAMAR JACKSON. Jackson also argues the EIGHT marks create a false suggestion of a connection with Jackson. While it is unclear which quarterback will win the trademark dispute, these oppositions present an opportunity to consider two critical principles of trademark law.

First, trademark rights are established through use of the mark in commerce, meaning the mark must be used as a brand for goods or services. Simply wearing a number on your jersey alone does not establish trademark rights in the number. That said, it is quite common for current and former NFL players to incorporate their numbers into their brands. See Tom Brady’s TB12 nutrition company and Charles Woodson’s TWENTY FOUR wine. To establish trademark rights in these marks, these players needed to sell their respective goods under their number marks.

Second, trademark rights are established on a first come first served basis – determined by which party was first to sell goods or services under a brand, or establish rights via an earlier trademark application filing date. Accordingly, while Aikman wore the number 8 decades before Jackson, he did not necessarily establish trademark rights prior to Jackson. In conclusion, businesses should remember that trademark rights are established through the use of a mark in connection with the sale of goods or services. Simply being known for your relation to a particular number, word, or symbol does not necessarily establish any trademark rights on its own – particularly when it comes to jersey numbers, of which there are a finite amount. Furthermore, if a person or a business wants to obtain trademark rights in a particular mark, they should take steps to establish priority rights to that mark as soon as possible by either commencing selling goods or services under the brand name, or by filing a federal trademark application.

This article appeared in the July 2024 issue of MarkIt to Market®. To view our past issues, as well as other firm newsletters, please click here.