David Blaine v. The Arizona Diamondbacks

Before the start of the 2008 MLB baseball season many teams updated their uniforms. This is a common practice in professional sports as teams seek to gain new revenue by creating new uniforms which fans will then purchase. Often, teams will not overhaul their uniforms completely but will make minor adjustments such as modifying color schemes, adding commemorative patches, altering lettering/font design, or changing the placement of numbers and names on the uniforms.

One team that chose to make minor adjustments to its uniforms before the start of the season was the Arizona Diamondbacks. In addition to a commemorative 10th anniversary patch, the Diamondbacks also decided to add a snakehead “db” logo patch to their uniform as well.

Unfortunately for the team, however, this drew the attention of the magician David Blaine. Blaine has his own logo – and felt that the “db” logo patch on the Diamondbacks uniforms looked too much like his own. He threatened to sue the Diamondbacks, presumably for trademark infringement.

This case seems like a case of reverse confusion in which a more powerful entity (the Diamondbacks) have adopted the trademark of a smaller, less powerful trademark user and have thereby caused confusion as to the origin of the senior trademark user’s (Blaine) goods or services. As a result, Blaine could claim that he has lost the value of the trademark.

To analyze this case, I would label it as a reverse confusion case and thus look to Judge Kozinski’s analysis in Dreamwerks Production, Inc. v. SKG Studio. There, Kozinski argued that the question in such cases was whether consumers doing business with the senior user (Blaine) might mistakenly believe that they are dealing with the junior user (the Diamondbacks.) Kozinski argued that three of the Sleekcraft factors were pivotal: (1) arbitrariness of the mark; (2) similarity of sight, sound and meaning; and (3) relatedness of the goods. In this case:
Arbitrariness of the mark – Very high. Blaine’s mark, if not arbitrary, is definitely inherently distinctive. It cannot be said to be generic or merely descriptive due to its stylized nature and unique look.

Similarity of sight, sound and meaning – Also very high. The Diamondbacks proposed logo looks almost exactly like Blaine’s logo and uses the same mirror-effect of the “d” and “b”. When looked at simultaneously, the marks are almost identical.

Relatedness of the Goods – Seemingly low because the two operate in very different business fields. However, Blaine could argue that because both entities presumably sell baseball hats with the logo, the relatedness of the goods is actually very high.
Thus, if Kozinski were the judge and recognized this as a reverse confusion case, Blaine would have a chance at winning. In reality, the Diamondbacks, fearing such a suit, modified their logo slightly to suit Blaine. It now looks like this (notice the fang-like eyes).

Do you believe the modifications are sufficient? Is this a reverse confusion case? Who would win if Blaine were to actually take the case to court?

Permalink :