Over the last several years, Nike has sold shoes and other items through a smartphone app called SNKRS. In 2020, the company sought to register “SNKRS” as a trademark under federal law. This would formally associate it with the Nike brand.
Nike initially failed in this effort. According to the examiner at the U.S. Patent and Trademark Office who reviewed its application, “SNKRS” did not qualify for trademark protection because it was generic. This means that the term simply states the type of product or service that is being offered. Under federal trademark law, a generic term cannot receive trademark protection because this would essentially give the trademark holder a monopoly in the product. (For example, if a cereal company could trademark “cereal,” no other company could sell cereal while using that word, which probably would prevent them from selling cereal.) A term must be at least somewhat distinctive to qualify for trademark protection.
While “SNKRS” is not exactly the same thing as “sneakers,” the trademark examiner noted that it was the phonetic equivalent of “sneakers” and thus rejected Nike’s application. However, the Trademark Trial and Appeal Board disagreed. In a decision at the end of last month, the TTAB ruled that “SNKRS” was a descriptive term, rather than generic. A descriptive term may become distinctive and thus qualify for trademark protection if it has developed a secondary meaning. This means that consumers have come to associate the term with a certain source.
The TTAB found that consumers buying sneakers would see “SNKRS” as a distinctive term associated with Nike. The company has used the term in a “substantially exclusive” way over the last several years, and it has received millions of orders through the app. In addition to Nike’s concerted efforts to promote the app, the media in general has recognized “SNKRS” as a term associated with Nike.
Thus, the USPTO decided to publish the trademarks sought by Nike in its Trademark Gazette. This triggers a 30-day window to challenge the trademarks before the USPTO registers them.
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