Boom – Trademark Infringement Case Against Nike Survives, For Now

On July 3, 2012, Ohio federal Magistrate Judge Nancy A. Vecchiarelli recommended that part of a trademark infringement case against Nike, Inc. survive a motion to dismiss in a trademark infringement suit brough by Edward W. Tovey.  Mr. Tovey claims that Nike infringed on a line of sports clothing he allegedly developed with LeBron James’ girlfriend in 2009.  In a recommendation to the district court, Judge Vecchiarelli stated that, contrary to Nike’s assertions, Tovey’s federal trademark infringement and unfair competition claims (as well as some accompanyingOhiostate law claims) should be allowed to proceed.  Still, the judge did recommend that Tovey’s claims for trademark counterfeiting and contributory/vicarious infringement should be dismissed.

Tovey’s suit asserts that he developed his clothing line, which contains the registered “Boom Yo!” trademark, after attending a college class with James’ girlfriend in 2005, and hoped to market the line with James, James’ girlfriend and Nike.  Though he never heard from Nike, the company later began advertising and marketing clothing featuring the word “Boom,” which Tovey believes creates confusion between Nike’s line and his “Boom Yo!” trademark.To justify her ruling, the judge noted “Tovey uses ‘Boom’ on the front of his clothing items and ‘Yo’ on the back side . . . .  It is plausible that Nike’s various uses of ‘Boom’ on the front of the clothing it sells creates the possibility of confusion in a consumer exercising ordinary attention  when buying sports clothing [and] alleges sufficient facts to state a plausible claim for relief with respect to his claim for trademark infringement.”

Tovey is representing himself in the suit.  Nike is represented by Lewis & Roca LLP.  Wieden & Kennedy, Inc., the advertising agency that developed Nike’s ‘Boom’ campaign, is a named co-defendant to the current action.

Magistrate Judge’s Report and Recommendations

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