Last week, Notsportscenter, LLC, a Florida Limited Liability Company, filed a federal trademark application for the term NOTSPORTSCENTER. Will this receive trademark protection?
First, the mark must be inherently distinctive, or have secondary meaning. We are going to assume that NOTSPORTSCENTER is not inherently distinctive, but instead, it is descriptive. It is merely the combination of the word NOT and SPORTSCENTER, meaning we must look for secondary meaning. To find secondary meaning we look at multiple factors: advertising expenditures, consumer surveys linking the mark to the source (50% sufficient in showing secondary meaning), unsolicited media coverage of the product, sales success, attempts to plagiarize the mark, length and exclusivity of the mark’s use. NOTSPORTSCENTER will have to prove that the majority of consumers recognize the mark comes from a single source; this will be difficult if you assume the average consumer will have confusion with the SPORTSCENTER mark.
NOTSPORTSCENTER is applying for the mark as it relates to, “Entertainment services in the nature of online news in the field of athletic sports and humor; entertainment services, namely, providing a web site featuring literature, video clips, film clips and other multimedia materials all featuring athletic sports and humor; providing information in the field of entertainment in the nature of humor relating to athletic sports; entertainment information regarding athletic sports and humor via the Internet, electronic communications networks, computer networks and wireless communications network.”
This description shows that there is a high likelihood of confusion with SPORTSCENTER because they both operate in the same marketing channels. NOTSPORTSCENTER is going to argue that they can protect this under fair use as a parody. This defense will work if they can prove that their intent is not to confuse the public and the intent to profit from the parody is not in bad faith. I do not believe they will be allowed to trademark this based on a parody argument. Putting the word NOT in front of a protected trademark show intent to benefit off of the senior mark.
If the mark is allowed to receive trademark protection, SPORTSCENTER will likely sue for trademark infringement.
NOTSPORTSCENTER will argue that the term “SPORTSCENTER” has become generic when talking about sports and news coverage. To assess this argument we look at the dictionary definition of SPORTSCENTER, use of the term by competitors, generic use in the media, consumer survey, and the existence of commonly used alternative means to describe the product. This is a weak argument for NOTSPORTSCENTER.
SPORTSCENTER is likely to argue that this trademark is trying to benefit off of their good will. SPORTSCENTER will say that they are creating a false designation of source, thus, reverse passing off. A court will look at the source of NOTSPORTSCENTER’s products and if the source originates with SPORTSCENTER than they will find that it is infringement.
This trademark application is likely to fail, due to the likelihood of consumer confusion and lack of actual parody. Even if it is allowed, Notsportscenter, LLC, should be ready to protect the mark in court. NOTSPORTSCENTER should also change their Twitter description and header image if they want to show they are applying for trademark protection in good faith.