The NBA is trying to toss copyright, trademark, and trade dress infringement litigation involving jerseys with “Brooklyn Camo” patterns brought by a sweater company favored by the late Notorious BIG.
Coogi Partners LLC’s complaint “is replete with dubious theories that in some way seek to articulate a cognizable claim against the Brooklyn Nets’-branded products that contain the ‘Brooklyn Camo’ pattern,” NBA Properties, Brooklyn Nets LLC, and other defendants said in a May 15 memorandum supporting a motion to dismiss.
The plaintiff claims the NBA and others infringed its copyrighted designs by using a multicolored pattern on Brooklyn Nets jerseys and merchandise. Coogi alleged the designs are a brand signature for its entire catalog, and that it’s entitled to a protection known as trade dress.
Coogi for its part had tried in its lawsuit to demonstrate that its designs had secondary meaning, or that consumers widely recognized its marks without any tells of its product source.
“Coogi’s claim that its purported trade dress is so famous that, as a matter of law, it merits the enhanced protection of such recognized famous trademarks like APPLE® and GOOGLE® is frivolous,” the defendants said in the memo.
Coogi and its attorneys at Cox Law Firm, LLC, and the Law Office of Howard W. Burns Jr., didn’t immediately respond to requests for comment.
‘Not a Slam Dunk’
Coogi has a high burden in trying to establish trade dress rights, the defendants said in their filing. Coogi can’t claim the rights for a “wide swath of unspecified product designs,” and its “attempt to cast a wide net over hundreds of varying designs is an overreach as a matter of law,” the defendants argued.
Susan Scafidi, professor, founder and academic director of Fordham University School of Law’s Fashion Law institute, said the defendants are trying to make the case that Coogi’s trade dress is “too vague, general and inchoate for consumers to recognize.”
Trade dress traditionally applies to things such as McDonald’s uniforms and Coca-Cola bottles, and it typically requires companies to have a significant amount of market penetration. Clothing companies have managed to secure trade dress, such as K-Swiss for its shoe designs.
Coogi’s bid, if successful, would be “an expansion of trade dress, because it would really focus not on a particular element that you could describe verbally with with specificity, but more on the recognition of an overall signature,” Scafidi said.
“What Coogi is saying is its patterns are distinctive enough that they constitute trade dress. It’s a bold new argument,” she said, though noted the case is “not a slam dunk for either side.”
Coogi claims that consumers associate its designs with the late rapper the Notorious BIG, a.k.a. Biggie Smalls, who rapped about and wore Coogi apparel. Coogi in its complaint said the NBA and other defendants “caused the creation of the Brooklyn Camo pattern in connection with the continuous Nets publicity events honoring Biggie.”
The defendants pushed back on that claim in their memo.
“Coogi does not allege that it owns that part—or any part—of Biggie’s persona; nor does it allege that any adoption or endorsement of Coogi products by Biggie was done under license from Coogi,” they said.
Cowan, DeBaets, Abrahams & Sheppard LLP is representing the NBA and Brooklyn Nets, along with defendants New Era Cap Co., Frontier Aluminum Corp., Russel Brands LLC, Wincraft Inc., and ISlide Inc. Banner Witcoff LTD and Powley & Gibson P.C. represent Nike Inc., another defendant.
Janvey, Gordon, Herlands, Randolph & Cox LLP is also representing Coogi.
U.S. District Court for the Southern District of New York Judge
To read more from IP Law News pleaseOR Request Trial
((Updated with additional reporting.))