Nike’s Defense in ‘Ballin’ Lawsuit Nets Attorneys’ Fees
A federal judge in Texas last week awarded Nike $25,000 in attorney’s fees for its successful defense of a lawsuit that accused the apparel giant of stealing the word “ballin.”
Judge Lee Rosenthal found that graphic designer Landon Jones’ trademark infringement case was “weak from the outset.” She also faulted Jones for his “harsh and unfounded” use of social media “to accuse a Nike employee of theft and racism” including after he learned his attacks “were baseless.”
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Litigants ordinarily bear their own attorneys’ fees. However, some statutes, including the Lanham (Trademark) Act, permit a judge to require the other side to pay in “exceptional” cases. Nike convinced Rosenthal Jones v. Nike was exceptional.
But in selecting $25,000, Rosenthal only granted Nike a fraction of the $570,000 in attorneys’ fees the company hoped Rosenthal would order. Nike claimed its attorneys and staff “spent over 750 hours” working on its defense. The judge found Nike’s requested dollar amount to be excessive. While Rosenthal acknowledged Jones “was wrong from the outset” and he shouldn’t have “resorted to harassing a Nike employee,” the “relative ease with which Nike obtained the dismissal of this case” and “the simplicity of the legal issues” are mitigating factors.
The case stems from 2019, when Jones designed a two-tone color concept for ballin so that it read as “be * all * in”. He thought Nike would be interested as part of March Madness promotions. Through Instagram, Jones sent an unsolicited pitch in the form of a direct message to a Nike marketing employee. The employee didn’t reply to Jones and later said she never opened or shared the link. Jones included images of T-shirts for ballin that incorporated several universities’ color schemes.
In 2021, Jones licensed his ballin concept to a friend and business owner for $1,000. The friend then sold several dozen T-shirts, hoodies and sweatshirts with ballin on it and hosted a podcast called “BALLIN”.
In February 2022, Nike launched a “BALL IN” campaign for March Madness, and it included T-shirts.
Rosenthal says that Jones “began to harass and cyber bully” the Nike employee “via multiple social media posts and videos.” As summarized by the judge, Jones mistakenly believed he had an exclusive right in the word ballin on basketball apparel. He reasoned Nike had stolen it without his permission and without compensating him. Rosenthal identified several problems with the case, including that ballin is a “common word” in basketball and mass culture, and that Jones hadn’t obtained an exclusive right.
Nike’s win follows the company recently defeating makers of knockoff Air Jordans.
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