GAME PLAN, INC. v. UNINTERRUPTED IP, LLC
Authored by: Jeremy J. Gustrowsky
A recent decision from the Federal Circuit highlights the importance of trademark priority and strict adherence to evidentiary rules in proceedings before the Trademark Trial and Appeal Board (TTAB). The case revolved around the rights to the phrase “I AM MORE THAN AN ATHLETE. GP GAME PLAN,” with Game Plan, Inc., a non-profit supporting student-athletes, challenging Uninterrupted IP, LLC’s (UNIP) applications for similar marks.
Game Plan, Inc. had registered its stylized mark in 2018 for charitable fundraising through t-shirt sales. Meanwhile, UNIP, a media company focused on athlete storytelling and apparel, filed six intent-to-use trademark applications in 2018 for marks containing “I AM MORE THAN AN ATHLETE” and “MORE THAN AN ATHLETE.” Game Plan opposed these applications, arguing a likelihood of confusion and claiming it had priority rights.
During the TTAB proceedings, UNIP countered by acquiring common law rights to “MORE THAN AN ATHLETE” from a third party, More Than an Athlete, Inc., which had used the mark since at least 2012. The Board found that this assignment included the necessary goodwill and was not merely a transfer “in gross” (i.e., without the associated business reputation). Game Plan argued that the timing and nature of the assignment violated trademark law and regulations, but the Board and the Federal Circuit disagreed, finding the assignment valid and sufficient to give UNIP priority.
A critical factor in the outcome was Game Plan’s failure to properly introduce evidence during the trial period. The Board dismissed Game Plan’s opposition because it did not submit any evidence at trial, despite being informed of the procedural requirements. The Federal Circuit affirmed that documents attached to motions or pleadings are not considered evidence unless properly entered into the record during the designated period.
Ultimately, the Federal Circuit upheld the Board’s decision to cancel Game Plan’s registration and dismiss its opposition to UNIP’s applications. The case serves as a reminder that both the substance of trademark rights and strict compliance with procedural rules are essential in trademark disputes.