Posted: October 27th, 2011
By Rob Abb *
If you are one of the 130 million registered users who play Electronic Arts’ (EA) video games, then you should recognize their logo. If you are one of EA’s 54 million registered users in the United States, then there is a good chance you have seen this logo, followed by the phrase: “ EA Sports: It’s in the game.”
Best known for video games such as Madden NFL Football, Fight Night, FIFA Soccer, andTiger Woods PGA Tour, EA has spent the better part of the last two decades building its brand image in both the gaming and sports community. In 2010, Forbes magazine actually ranked EA Sports as the 7th most recognized sports brand in the world, along with such brands as Nike and ESPN. Additionally, EA not only advertises its products regularly online and on social networking sites like Facebook and Twitter, but also markets and sells its products, all bearing the EA trademarked logo, in several of the largest retailers in the world, including Wal-Mart, Target, and K-Mart. It follows that EA would obviously be concerned about protecting the integrity of its brand from both confusion and dilution.
In an effort to protect its reputation and brand name, EA recently filed suit in California District Court against Energy Armor, a recently formed Florida-based company that markets and sells health and fitness products. Perhaps tempting EA to file their complaint, Energy Armor recently filed an application to register a trademark of its own “EA” logo, which many (including this author), believe to be “strikingly similar” to EA’s original logo.
EA’s complaint alleges that “Energy Armor’s use of the Energy Armor EA Mark is likely to cause confusion, or to cause mistake, or to deceive consumers as to an affiliation, connection, or association between Energy Armor and Electronic Arts.” EA further alleges that “consumers are likely to believe that Electronic Arts is the source of Energy Armor’s EA-branded products or has authorized or licensed Energy Armor.”
Energy Armor markets and sells “negative ion based health and wellness products,” and is most known for its silicon wristbands which contain the disputed “EA Energy Armor” logo. According to the complaint, EA also sells sporting goods and exercise equipment, including wristbands that bear the EA logo.
In light of the similarities between EA and Energy Armor, EA made several claims of trademark infringement under the Lanham Act and two claims of dilution under 15 U.S.C. § 1125(c) for both blurring and tarnishment. Blurring occurs when consumers begin to associate one brand with another, due to the similarity between the two, and such blurring “impairs the distinctiveness of the famous mark.” Here, EA alleges in its complaint that Energy Armor’s use of such a similar mark will confuse consumers and blur the distinctiveness of EA’s mark, thus allowing Energy Armor to take advantage of the reputation EA has spent decades establishing.
EA makes an alternative argument in support of its tarnishment claim. While the blurring claim focuses on the effects of EA on Energy Armor, the tarnishment claim focuses on the damage that could be caused by Energy Armor to EA. That is, EA and other critics describe the wristbands (which cost Energy Armor an estimated $1.50 to produce and are sold for nearly $30 each) as a “scam,” “the new snake oil,” and “unscientific rubbish” that “stupid people believe in.” Whether true or not, the perception that Energy Armor products are a scam could dilute the EA brand name by tarnishing its reputation. For example, if the average consumer was confused and associated Energy Armor products as being the same thing as EA products, that consumer may be less likely to purchase EA products in the future if he perceived Energy Armor’s products to be of low quality.
Because of the similarity between the logos, it is difficult to see how Energy Armor hopes to answer EA’s complaint. EA asked the court to prevent Energy Armor from using its EA logo, to destroy anything bearing the logo, and to order the United States Patent and Trademark Office (USPTO) to refuse Energy Armor’s trademark application for the logo as well as damages for all lost profits and compensation for “corrective advertising.” Although EA may struggle to prove actual damages to its mark as well as corrective advertising costs, it should, if nothing else, succeed in stopping Energy Armor from using its mark in the future.
* Rob Abb is a third-year law student at Wake Forest University School of Law and is President of the International Law Society. He holds a Bachelor of Arts and Science in Political Science and Asian Studies from the University of Michigan. Upon graduation in 2012, Mr. Abb plans to practice international law.