Michael Kors Should Expect An 'L' Based On The Use Of New Balance's 'N'

Not only does New Balance have a sincere case for consumer confusion, it also has a clear claim for dilution.

(Photo by Roy Rochlin/Getty Images)

It is rare to look at the face of a complaint and make the determination that the plaintiff has a slam dunk trademark infringement cause of action. However, New Balance appears to be in that exact situation with its newly brought case against Michael Kors for ripping off its “N” design.

Early in the complaint, a comparison between a wide range of New Balance shoes with recently created Michael Kors sneakers makes it clear that Kors was not very creative in the selection of the main mark on its footwear. I did not even realize that the mark could be characterized as an “M” instead of an “N” until someone pointed it out to me, and I still think that Kors’s mark looks closer to the “N” popularized by New Balance.

Not only does New Balance have a sincere case for consumer confusion, it also has a clear claim for dilution. Sports business reporter Darren Rovell noted that New Balance’s 327 line featuring a big “N” is one of the biggest surprise success stories in sneakers in the past two years. Kors’s product, if inferior, has the potential to dilute the distinctive source-identifying quality of the “N” marks.

An interesting wrinkle, in this case, is an alleged admission made by Michael Kors (the individual) that he is a fan of the New Balance Brand. A Vogue article from 2016 begins with: “It’s a rare occasion you see Michael Kors out of his trusty New Balance sneakers. Even at this year’s Met Gala he wore glorified trainers with metallic silver uppers and white rubber soles.” In 2012, Harper’s Bazaar published a piece indicating that Kors (the individual) has New Balance shoes custom-made for him and that he probably has “a good 15 pairs of New Balance in black.”

Perhaps the above can play into an analysis of whether the infringement by Kors is willful. If so, then this could be deemed an exceptional case, allowing New Balance, if it is the prevailing party, to also recover its attorney’s fees and costs.


Sponsored

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

Sponsored