Under Armour brought cancellation and opposition proceedings against two registrations and an application owned by Evade for the following marks:
- EVADE OFFSHORE ARMOR® and click here to view the im ®, both covering shirts, hats and other clothing in the field of fishing, and
- EVADE OUTDOOR ARMOR™ for clothing.
Along with numerous other registered marks, UA asserted likelihood of confusion with its registered marks UNDER ARMOUR and ARMOUR, both of which are registered for clothing.
Evade did not contest the similarity of the goods, or argue that the channels of trade or classes of consumers were different, or that consumers would exercise anything more than ordinary care in purchasing either party's goods. Evade conceded that the UNDER ARMOUR mark is famous for clothing, but disputed the strength of UA's ARMOUR mark.
Evade contended that the term “Armour” or “Armor” by itself is weak because it is descriptive or at least suggestive of certain types of clothing. Evade argued that there was wide-spread third party use of that term not only in marks, but also as a word to describe clothing. The Board concluded that while “armo[u]r” can be merely descriptive of clothing having a specific protective purpose, it is only slightly suggestive of clothing in general. Further, the Board found Evade’s evidence of third party use of the term in marks and on clothing was insufficient to establish that the term is weak or diluted. In particular, Evade’s evidence of third party use consisted only of a few marks and failed to establish that the marks were actually in use or in use with clothing. Further, Evade submitted third-party registrations for “Armo[u]r” marks used on clothing with an express protective or safety purpose, but did not submit any registrations for the marked used on general articles of clothing. Thus, the Board concluded that the likelihood of confusion factor involving dilution through others’ commercial use on the same or similar goods was a neutral factor in its analysis.
As is most often the case, the result in this case turned on the similarity of the marks. As to click here to view the image , the Board found that the marks are dissimilar because the arbitrary term EVADE dominates the entire mark based on its sheer size.
The Board found the circumstances to be quite different when considering Evade’s EVADE OFFSHORE ARMOR and EVADE OUTDOOR ARMOR standard-character marks. In a standard character mark, the Board must consider that the mark may appear in a variety of stylized manners, including one that emphasizes ARMOR. The Board noted that the marks incorporate UA’s registered ARMOUR mark. Since EVADE is the name of the applicant, some consumers may consider this as merely the addition of a trade. The fact that a mark is used in this way is typically not, by itself, sufficient grounds for finding lack of confusion. The Board ruled that the standard-character marks are similar to UA’s ARMOUR mark, and found a likelihood of confusion with those marks.
Under Armour, Inc. v. Evade, LLC, Opposition No. 91195620 and Cancellation No. 92052716 (TTAB October 29, 2015) [not precedential]