The General Court of the European Union has sided with Puma against Nike’s attempt to trademark the capitalized word “Footware” as a play on software/hardware and footwear, according to the Wall Street Journal.
Nike obtained the trademark from the UK High Court in mid-2021, but Puma has been arguing that many customers will misread “footware” as “footwear” and, therefore, understand it to be the mere descriptor of a product category. Category names are not subject to trademarking.
Nike, which is charged with covering Puma’s legal costs, has one more court with which it can file an appeal: the European Court of Justice.
Nike’s parallel effort in the US was thwarted in February before the Trademark Trial and Appeal Board by San Antonio Shoe Inc., which made a parallel argument to Puma’s: the term is “merely descriptive” and “not capable of acquiring distinctiveness” under the Trademark Act. Nike’s counterargument – that the goods and services to which it planned to apply the term “footware” were in no sense shoes but, instead, “a platform of technology capabilities combining hardware, firmware, software and connectivity” (i.e., that it was a matter of “-ware” and not “-wear”) – failed to convince.
