Duquesne Law Review


David M. Kelly


The application of sports trademarks is a multi-million dollar business. Because this market is so lucrative, a great amount of counterfeiting exists. This comment discusses several problems encountered by the sports trademark owner when attempting to enforce trademark rights against infringers. The first obstacle is the contention that the trademark is functional, and thus not a valid trademark. Secondly, courts often require direct evidence of "infringement" through the production of consumer surveys. After a review of the pertinent case law, the author concludes that functionality in any form should not preclude protection of sports trademarks and that the sports trademark owner should be able to establish "infringement" through a showing of indirect evidence.

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