Sports

TOGETHXR's Case May Be Coming Apart

TOGETHXR will have an incredibly difficult task of keeping this case alive.

By  
on
shutterstock_377283442_Trademark

(Image via Shutterstock)

TOGETHXR, an entertainment and media online platform in the sports and lifestyle space that was founded by popular athletes Alex Morgan, Chloe Kim, Simone Manuel, and Sue Bird, has had its parent company file suit against the entity that is in charge of rebranding and relaunching the XFL with Dwayne “The Rock” Johnson leading those efforts. The complaint alleges three causes of action: federal unfair competition and false designation of origin; state common law trademark infringement; and state unfair competition.

TOGETHXR is represented by Gina L. Durham and Jordan Chisek of DLA Piper LLP, which is the same law firm that has assisted with its parent company’s (AXM LLC) three pending trademark applications with the United States Patent and Trademark Office (USPTO). Those applications are for the standard character word mark “TOGETHXR,” the standard character word mark “TGXR,” and a stylized design mark for the letter “X.” None of the marks has been registered by the USPTO, but that did not stop TOGETHXR from initiating its claims against the XFL’s parent company (XFL Properties, LLC).

The crux of TOGETHXR’s claim is that the XFL’s rebranding appropriates the stylization and mimics the brand that was built by TOGETHXR. It appears to be specifically concerned about the “X” in the XFL’s mark and that it too closely mirrors the “X” logo that TOGETHXR seeks to have registered with the USPTO. The complaint includes a screenshot from an XFL video that shows its X pulled apart with the word “TOGETHER” in-between, which TOGETHXR hopes will at least cause its case to move past a motion to dismiss that is certainly forthcoming.

TOGETHXR reached out to the XFL prior to filing its complaint. In April, it sent a cease and desist letter after Megan Rapinoe tweeted that the XFL’s new brand identity was “awkward” and said that the only thing Dwayne Johnson (The Rock) and the XFL “are gonna be cookin up is a response to the Cease and Desist and an ENTIRE new brand ID.” The XFL certainly did not take the threat credibly and neither did many others who responded to Rapinoe’s tweet.

One Twitter user wrote, “You can claim an originally designed font, but since the fonts are completely different, it appears that you think you have ownership of the use of the letter X? Now, THAT is embarrassing.” Another user reacted, “I think your [sic] going a bit overboard on this one. Togethxr and XFL just share a split in the middle of the X. Outside of that, you [sic] logo is more rounded and the 4 corners of the X are angled in different ways. Your [sic] going to complain about what an X looks like in a logo? Greedy much?”

TOGETHXR will have an incredibly difficult task of keeping this case alive. While the XFL’s “X” design may be closely similar to TOGETHXR’s logo, there are clear distinctions between the look and feel of both brands’ use of the marks and, further, the XFL seems to use the XFL name in close proximity in those situations that it uses its “X” on its own.

Sponsored

It is improbable that a consumer will be actually confused as to source, affiliation, or association and the complaint does not point to any examples of actual confusion as of the date of filing. Furthermore, without any actual trademark registrations in hand, particularly for the “X” stylized mark, TOGETHXR does not even possess clear ownership rights to the main mark it is basing its claims on. Interestingly, the examining attorney at the USPTO who is assigned to that application issued an office action on December 17, 2021, providing TOGETHXR’s parent company six months from that date to respond to same or the application will be abandoned. That includes a requirement that the mark’s description is amended to indicate it consists of a stylized letter X, shaded on the left side, which makes it inherently different than the XFL’s “X.” The company has not yet responded to the office action.

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

Topics

, , ,