The sky’s the limit when it comes to the imagination of people; their creative ideas, interests, how they see the world. But, when does it become apparent that one company is blatantly copying the creative idea of another? Such is the case with China’s newest sportswear brand, Uncle Martian.
Under Armour is one America’s most well-known sportswear brands, it is worn by your everyday American, as well as New England Patriots quarterback Tom Brady.[1] Under Armour has built its reputation on quality products that hold up during even the most rigorous exercises. But, the true question is whether Under Armour has any recourse against Uncle Martian.
According to United States law, trademarks are governed primarily by the Lanham Act of 1946.[2] Under this statute, infringement will be found under the “likelihood of confusion test,” which is laid out in Polariod v. Polarad.[3] Where the defendant would be found liable if the new trademark infringes on the existing trademark, where a consumer is likely to confuse the companies and mistakenly purchase the wrong product. There are several factors to consider when applying the confusion test: strength of the plaintiff’s trademark; degree of similarity between the two marks at issue; similarity of the goods and services at issue,[4] along with a few other factors too. If, Uncle Martian were to begin sales within the states or attempt to register the logo with United States Patent and Trademark Office (“USPTO”), then Under Armour could file suit for infringement in the federal circuit. But, as it currently stands Uncle Martian has not yet begun sales in the states.
Under Armour began its operation in 2010, and since that time has opened over 75 stores.[5] Premium sportswear in China has become a fashion trend and is regarded highly within the country.[6] It is evident that a local corporation would be interested in participating in this market. Since Uncle Martian has only recently launched in China, it is unlikely that Under Armour could sue for trademark infringement within the United States jurisdiction, therefore the only recourse currently for Under Armour is within China’s jurisdiction.
According to Entrepreneur, China has similar copyright laws to that of Western countries like the United States.[7] “China has been a part of the World Trade Organization since 2001, which requires it to establish significant intellectual property law.”[8] For Under Armour this should sound like wonderful news, unfortunately for our well-known sportswear provider, they may encounter some difficulties. Within China, their intellectual property rights laws are difficult to enforce.[9] For Under Armour it would be in their best interest to seek a court injunction against Uncle Martian for infringement, as opposed to seeking statutory damages too. Because, within in China there is no discovery procedure, like there is in the United States.[10]
Did Uncle Martian copy Under Armour’s logo? The largest difference between the two is that Uncle Martian’s upward facing arc and the downward facing arc do not intersect. How likely will it be for someone to confuse the two logos and purchase the wrong product – pretty likely. As a consumer, the two logos are strikingly similar and I believe Uncle Martian is attempting to copy rival sportswear company Under Armour.
[1] Michael Forsythe, Chinese Appear Underwhelmed by Under Armour Knockoff, The New York Times (Apr. 29, 2016), http://www.nytimes.com/2016/04/30/world/asia/china-uncle-martian-under-armour.html.
[2] Lanham Act 15 U.S.C.A § 1051 (1946).
[3] Polaroid v. Polarad, 287 F.2d 492 (2nd Cir. 1961)
[4] Id.
[5] Victoria Ho, Chinese brand Uncle Martian is blatant rip-off of Under Armour, Mashable (Apr. 29, 2016), http://mashable.com/2016/04/29/uncle-martian-under-armour/#NA59lF1aXuq3.
[6] Id.
[7] Will Heilpern, A Chinese Sportswear Brand Called Uncle Martian Just Launched, and it Appears to Be Openly Ripping Off Under Armour, Entrepreneur (Apr. 29, 2016), https://www.entrepreneur.com/article/274920.
[8] Id.
[9] Id.
[10] Christina Nelson, Enforcing Intellectual Property Rights in China, China Business Review (Oct. 1, 2012), http://www.chinabusinessreview.com/enforcing-intellectual-property-rights-in-china/.