Last week, Lebron James announced that he would be returning to his hometown team, the Cleveland Cavaliers. The following day, the Cavaliers sold all of their remaining season ticket plans. However, the Cavaliers are not the only Ohio business benefitting from Lebron's return.
In anticipation of Lebron announcing what team he would sign with, Fresh Brewed Tees created a tee-shirt design it would sell should Lebron return to the Cavaliers. Fresh Brewed Tees tweeted this design to its sizable following, and within hours of Lebron's decision, the company sold out of its initial batch of shirts. (For more on Fresh Brewed Tees success following Lebron's announcement, see this article.)
The tee-shirt designed by Fresh Brewed Tees serves as a good example of ambush marketing done well. For a brief review of ambush marketing, see my previous post here. Take a look at the shirt design below:
Let's break down the elements of the shirts shown above. Remember, proper ambush marketing does not use or directly associate itself with any protected trademarks surrounding an event. In this case, the event being Lebron's return to the Cleveland Cavaliers.
The most prominent feature of the design is the word FOR6IVEN, which is clearly a play on the word "Forgiven" with the number six replacing the G. The word "Forgiven" does not allude to any trademarks held by Lebron, the Cavaliers, or the NBA. The text is bolded and entirely in capitals, which is distinct from the Cavaliers logo. Additionally, the text is in a different font than the Cavaliers' logo. The number six that replaces the G is also not associated with any known trademark owned by the Cavaliers or Lebron, and exists as an allusion to Lebron's jersey number while playing for the Miami Heat. It is still not known whether Lebron will even wear a 6 on his jersey in Cleveland.
Actually, Fresh Brewed Tees should be able to trademark the term "FOR6IVEN" for use on apparel, specifically tee-shirts. As a trademark is a word, phrase, symbol or design that identifies and distinguishes the source of goods from others, Fresh Brewed Tees could trademark the word to create a line of tee-shirts, or other clothing, which similarly allude to Lebron. A quick search of the US Patent and Trademark Office's trademark database revealed no trademark filings for the term.
THE KINGDOM RESTORED
This phrase is a secondary design element of the tee-shirt, appearing below "FOR6IVEN" in plain text and all capital letters. This phrase is an allusion to Lebron James' nickname "King James," which is trademarked, and is perhaps suggesting that Ohio, or Cleveland, is the kingdom. In the context of the shirt, "kingdom" is somewhat vague. The phrase does not specify what said kingdom is or who rules it. Ultimately, the allusion to Lebron is so removed from the trademark that it would not constitute infringement. Given the phrase "THE KINGDOM RESTORED," there appears to be little, if any, likelihood of confusion with Lebron's trademark.
The image of a basketball with a sword through it
The final element of the tee-shirt is an image of a basketball with a sword through it, placed on the center of the shirt, below all other elements. This element is an allusion to the Cavaliers logo, which also contains a sword and basketball. However, in the Cavaliers logo, the sword is puncturing the team name in the foreground of a basketball. Additionally, the two swords are strikingly similar.
This element of the tee-shirt design is too close to the trademarked logo of the Cavaliers, possibly creating a likelihood of confusion. As the Cavaliers sell tee-shirts featuring their logo, the shirts would be in the same channels of commerce, strengthening any infringement claim. There also is a colorable argument that Fresh Brewed Tees intentionally selected this design element to be similar to elements of the Cavaliers' logo. By implementing the sword and basketball design, purchasers further understand the connection of the above phrases with the team.
On the other hand, if faced with an infringement suit, Fresh Brewed Tees could claim that the Cavaliers' logo is distinct from its design as the sword in the logo pierces the team name and not the basketball. Further, the company could argue that the sword used is generic, and not specific to the Cavaliers' logo. It is unclear whether Fresh Brewed Tees would prevail on such an argument, but to avoid a potential infringement suit, it may be in Fresh Brewed Tees best interest to remove the sword and basketball image.
Although Fresh Brewed Tees ambush of Lebron's return to Cleveland has been financially successful in a short period of time and mostly proper, the company may wish to consider removing the image of a sword through a basketball to avoid a potential infringement suit. Should the company do so, its FOR6IVEN tee-shirts will serve as a primary example of a proper ambush.
One of the topics heavily discussed at last week's Sports Lawyers Association Annual Conference was ambush marketing. In case you are unaware, ambush marketing is a strategy where a brand associates themselves with an event or persons to capitalize on their fame without paying sponsorship fees. Take a look at this ad by Nike that was released around the 2012 Summer Olympics in London, England:
Nike was not a sponsor of the 2012 Olympic Games in London, England, yet cleverly utilized the public's knowledge of the games by showing sports being played in towns also called London in the United States, Norway, Jamaica, and Nigeria. Additionally the voice-over about greatness certainly conjures the image of the Olympic athlete. This ad was used as part of a larger campaign, with the ad appearing on the homepage of Youtube for a day, as well as engaging users on Twitter with the hashtag at the end of the video. Cleverly, the ad relies upon the viewer to make the association between the images, Nike's brand, and the knowledge that the Olympics were taking place in London.
Most important is what Nike does not do in this ad. Nike never shows London, England, the Olympic rings, or even says the words Olympics or games. In other words, Nike did not use any protected intellectual property associated with the Summer Olympics in London, England. Doing so would have left Nike on the wrong end of an extremely costly infringement lawsuit.
So what can businesses learn from this Nike commercial about ambush marketing?
Quiles Law is an esports-focused law firm based in New York City.
1177 Avenue of the Americas
New York, NY 10036
(P) (917) 477-7942
(F) (917) 791-9782
Attorney Advertising. The information presented in this site should not be construed to be formal legal advice nor is it intended to form any attorney/client relationship. Our attorneys are licensed to practice law in the States of New York and New Jersey. Copyright Quiles Law, 2020. All rights reserved.