Weekly IP Buzz for the week ending March 15, 2019

Here's a summary of interesting developments in intellectual property, technology, social media, and Internet law for the week ending March 15, 2019.

City Edition Jerseys: NBA Accused of Copyright & Trade Dress Infringement

The National Basketball Association (“NBA”) has been accused of multiple counts of intellectual property infringement by a New York based clothing line. Coogi, a well-known sweater brand has taken issue with NBA uniforms that debuted last year and has filed copyright, trade dress, and trademark infringement claims against the NBA for “City Edition” jerseys worn by the Brooklyn Nets.

Coogi, a clothing brand that markets colorful, knit sweaters that have bold stripes, patterns, and linework, claims that the Brooklyn Nets’ City Edition jersey uses nearly identical prints that are showcased in Coogi’s sweaters. For example, Coogi claims that last year’s City Edition jersey takes specific patterns from the Coogi line such as “Ricotta” and “Pea Soup” and incorporates it into the border and fringes of the Nets’ basketball jerseys

In the suit, Coogi explains how its colorful knit patterns are representative of Brooklyn culture. Colorful knitwear sweaters like Coogi’s were made iconic by Bill Cosby during his television series run and the knitwear became even more associated with Brooklyn when late Brooklyn rap-star, Notorious B.I.G., also known as Biggie Smalls (“Biggie”), stated he was an avid fan of the Coogi line, even going as far as to reference the sweater brand in one of his songs. Thus, Coogi argues that when the Brooklyn Nets introduced their City Edition jerseys and called them “Biggie-inspired,” the NBA purposely used the designs to trade off of Coogi’s proprietary designs.

In its complaint, Coogi further asserts that the designs are protected by copyright and trade dress law. Specifically, Coogi asserts in its trade dress complaint that its specific colorful vertical cables, sections, and intricate designs serve essentially serve the same function as Coogi’s brand or logo would. Coogi argues that the patterns have become so recognizable in connection with its brand that the Brooklyn Nets knew exactly what they were doing when releasing the City Edition jerseys.

The NBA, however, has pushed back. The NBA argues that the jerseys are not similar to Coogi’s line of sweaters. In support of this argument, the NBA has noted that the jerseys’ stripe colors, positioning, and direction are all different.

While the standard to find copyright and trademark liability are different, with copyright infringement requiring substantial similarity and trademark infringement requiring likelihood of consumer confusion, it will be interesting to see whether the NBA settles or is able to successfully navigate its way out of Coogi’s claims. 

Read more here.

Copyright Infringement of Dance Moves in Video Games

Last year’s video game market was dominated by Epic Games’s battle-royale sensation, Fortnite. The game combines elements of building defensive fortifications with third-person shooter elements to create an environment where players basically compete in a cartoonish free-for-all that ends with only one player declared to have achieved “Victory Royale.” However, the game’s dance moves have brought up the question of copyright infringement.

While Fortnite has achieved considerable success and broken many video game records, it also has broken new ground in intellectual property litigation, specifically in copyright litigation. While Fortnite is a free-to-play game, it does offer a number of “premium” options for which players can pay real money. Among some of these premium or cosmetic options is the ability to buy specific dances for the player’s character or avatar. When choosing which dances to incorporate into Fortnite, Epic Games decided to include dances that would appeal to the player base, and as such, programmed in dances that were taken from mainstream, popular culture.

Because these dances, however, have come to be largely associated with the specific characters or celebrities that perform them, Epic Games has found itself in the middle of a flurry of new litigation. While the choreography and public performance of dances have long been recognizable as copyrightable, whether the dances depicted in Fortnite are subject to copyright is hotly contested by both sides.

Read the full article here.  

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Darin M. Klemchuk is founder of Klemchuk LLP, a litigation, intellectual property, and transactional law firm located in Dallas, Texas. He also co-founded Project K, a charitable movement devoted to changing the world one random act of kindness at a time, and publishes Thriving Attorney, a blog dedicated to exploring the business of the practice of law, productivity and performance for attorneys, and other topics such as law firm leadership and management, law firm culture, and business development for attorneys.

Click to learn more about Darin M. Klemchuk's law practice as an intellectual property lawyer.