An interesting trademark filing was recently made by New Balance for “4 Bounces.” The trademark application was filed the day after Kawhi Leonard hit that shot that bounced four times on the rim, then went in, sending the Toronto Raptors to the Eastern Conference Finals. Taking a look at the timestamp on the application, it was filed at 1:25PM. This was clearly a priority at New Balance once the shot went in. And, of course, Kawhi signed a huge endorsement deal with the company last year.
This application was filed on a “1B” basis. What that means is that the company has an intent to use the trademark for the goods listed in the application. In this application, New Balance lists items such as footwear, apparel, t-shirts, pants, jackets, jerseys, sweatshirts, and hats. So, you can get ready to buy your “4 Bounces” shoes, t-shirts, sweatshirts, and hats at some point in the near future.
This application gives New Balance a federal priority in the phrase “4 Bounces” as of the filing date. This means that if anybody else attempted to sell “4 Bounces” gear or attempted to sell anything that would be related to apparel and footwear under the brand “4 Bounces,” they would be subject to New Balance’s federal priority.
Will the USPTO Approve New Balance’s Trademark Application for ‘4 Bounces’?
I think the USPTO should refuse this application and here is why.
We can use the “Double Doink” as our example. You may remember Cody Parker’s missed field goal in a playoff game versus the Eagles last year. He managed to hit the upright, then the crossbar, and the ball bounced out. Thus, the phrase “Double Doink” was born. Someone from Wisconsin tried to file a trademark application for “Double Doink” for a brand of clothing and novelty items, but the USPTO was having none of that.
There was a refusal issued saying that it fails to function as a trademark because the phrase is a commonly used message that was the result of a football game. If something becomes a widely-used message that’s conveying a familiar concept, it just can’t function as a trademark and this is because the average consumer is unable to determine who was the source of the goods.
In this case, it is very likely that because “4 Bounces” became a thing after Kawhi’s shot, the USPTO should use the same logic to refuse this application as it did in refusing the trademark application that was filed for the “Double Doink.”