Ezekiel Elliott to the USPTO: Don’t You Know Who I Am?

Ezekiel Elliott is the running back for the Dallas Cowboys. In his rookie season in 2016, he rushed for 1,631 making him the top rusher in the National Football League. Because of his successful rookie season, Ezekiel Elliot was selected as a First-Team All-Pro and made his first Pro Bowl. Due to a suspension based on off the field conduct, Ezekiel Elliott’s 2017 season was far less successful than his rookie season.

Ezekiel Elliott attended the Ohio State University where he majored in marketing, so he understands the importance of a trademark registration. On August 7, 2015, he filed an intent-to-use trademark application for the mark ZEKE in connection with a variety of clothing articles. The USPTO refused registration of Ezekiel Elliot’s application on the ground that it was likely to cause confusion with two prior registered marks:  ZEKE’S SMOKEHOUSE (SMOKEHOUSE disclaimed) and ZEKE’S COFFEE & Design (COFFEE disclaimed) both for clothing.

The goods at issue in this case were legally identical because they were clothing. That meant, absent an express restriction in the identification of goods descriptions, the goods at issue were deemed to travel in the same channels of trade and appeal to the same classes of consumers. So from the start, Ezekiel Elliott was starting three likelihood of confusion factors down to the USPTO.

Ezekiel made the conceptual weakness argument, but it does not appear that Ezekiel understood how to make this argument. He offered no third-party registrations beyond the two cited marks and then argued that these marks are used in limited geographic areas. Giving context to the use of a mark is key to a strength argument, but in Ezekiel’s case you want to the use to be widespread. Pointing out the limited use could only hurt his case, and put him down four likelihood of confusion factors to the USPTO.

Ezekiel Elliott’s ZEKE mark was also incorporated in its entirety in the cited marks, but he put an interesting spin on the “meaning” aspect of the similarity of the marks factor. He claimed to be a well know football player and that consumers would recognize ZEKE as his nickname. However, the USPTO found that the evidence did not demonstrate Ezekiel Elliot was a well-known football player or that consumers would recognize ZEKE as his nickname.

The evidence establishing his popularity may not have been in the record, or it could be that the USPTO being located near Washington, DC means they don’t like the Dallas Cowboys given the rivalry with the Washington Redskins.

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