Lamar Jackson, Dale Earnhardt, Jr. dispute over number ‘8’ trademark

• The battle over who can market the number “8” may be over before it gets started. Baltimore Ravens quarterback Lamar Jackson and NASCAR star Dale Earnhardt, Jr. both have registered trademarks.
• On Wednesday, April 2, Jackson filed a challenge to another Earnhardt, Jr. trademark application, saying it would harm his brand.
• Earnhardt, Jr., announced in a post on social media late Friday, April 4, that he would use a different “stylized 8” logo.

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Many famous athletes are and have been recognizable by the number 8. Cal Ripken, Jr., Alex Ovechkin, Steve Young, current stars Lamar Jackson of the Baltimore Ravens and NASCAR legend Dale Earnhardt, Jr.’s car, chief among them.

Can anyone register to trademark a number?

The last two on that short list are in a dispute to see who gets the registered trademark on that number via the U.S. Patent and Trademark Office. They both have similar registered trademarks on their famous digit. And evidently, you can register a number as a trademark if it meets certain conditions, says Robert Cumbow of the law firm Miller Nash. Cumbow also teaches trademark law at Seattle University.

“Yes, if it is used as a trademark. That means if the person who purports to own that trademark is using it as a brand in connection with goods and services or both, offered to the public,” Cumbow said.

What about the number is in dispute in this case?

The next question that needs answered is how similar the designs or marks are. Jackson holds registered trademarks for three different versions of the number. The two most similar to the stylized “8” in question are “ERA 8 BY LAMAR JACKSON” and “ERA 8.”

In Jackson’s written challenge to Earnhardt, Jr., his lawyer contends he’s widely associated with number 8 due to his NFL status and brand merchandise. He also states that Earnhardt’s efforts could falsely imply a connection between the two athletes. Jackson says customers could mistakenly believe products offered by Earnhardt are related to products offered by him.

Those are issues that could be debated if a lawsuit is eventually filed. Which star has the right to market products using the famous number 8 could be worth potentially hundreds of millions over a lifetime. Another major factor is who the first person was to register the trademark in question.

“So, where these two guys are at right now is which of them has the prior right and which of them is out of luck and will have to market themselves differently and not rely on that identical jersey number.” Cumbow said.

Has Dale Earnhardt, Jr. decided to waive the red flag?

It seems that’s what may have happened in this case. Late Friday, Dale Jr. posted a message on social media saying his company has secured the rights to a different “stylized 8” than the one in the Jackson challenge. There is no word on whether that change will be enough to satisfy Jackson’s camp. Still, Cumbow says that is a common way to settle cases like this.

“Both sides can continue to use the mark provided they each use the mark in a way that clearly distinguishes it from the other guy’s mark. So, it might be colors, it might be typeface, it might be additional wording, that would be a really good way to resolve things,” Cumbow said.

Jackson also has an ongoing “No. 8” dispute with Hall of Fame quarterback Troy Aikman. Aikman also wore that number while winning three Super Bowls with the Dallas Cowboys. That case is still being litigated.