Kmart fends off trademark suit over Risewear basketball brand

By

Cassidy Mantor

Published
Nov 1, 2017

A California judge has thrown out a trademark infringement suit brought by Rise Basketball Skill Development LLC against Kmart's Risewear basketball athleisure line.

Last year, Rise Basketball Skill Development LLC ("Rise") sued Kmart Corp., it's parent company Sears Holdings Management Corp., and Risewear LLC ("Risewear") in California federal court for copying Rise's logos and producing a similar product for the basketball athleisure consumer. Rise specifically argued that Kmart's "dunking basketball logo" infringed upon its "winged basketball logo."

Rise is a seller of core basketball training product online. Risewear is a brand sold by Kmart and Sears which is marketed as a "lifestyle athleisure brand that blurs the line between sportswear and every day wear." To that end, its trademarked logo features a graphic of a basketball player dunking a ball to complete the word Rise.

Through a licensing agreement Sears began selling the Risewear product in Kmart and Sears stores and online in 2016. In response, Rise sued for trademark infringement and unfair competition.

The court held a hearing last month and found Rise did not have enough of a case to continue the lawsuit. The court said even though priority registration is a factor in determining rightful owner, it is not the only test the court has to evaluate. The intellectual property rights for a registered mark officially kick in when the mark is used in commerce. Risewear was the first company to use the mark, not Rise, despite Rise registering its mark first.

The court also pointed out that the standard for trademark infringement is whether the consumer would be confused by the similar product. The judge wrote that the Risewear logo was "starkly different" from Rise's logo.

The court also looked at channels of distribution, pointing out that Risewear was exclusively sold through Sears and Kmart while Rise is sold online through its own channels. While the product may be similar the customer would not be confused as to who made the product.

Kmart won an order of summary judgement meaning the litigation will end and Risewear will continue being sold through its various channels of distribution at Sears and Kmart.