Earlier this week, Baltimore Ravens star quarterback Lamar Jackson filed a formal opposition to Dale Earnhardt Jr.’s attempt to federally register a stylized version of the number 8 with the U.S. Patent and Trademark Office ("USPTO").[i] The Notice of Opposition, which was filed on April 2, 2025, brings about commonplace trademark issues: brand identity and likelihood of confusion. The USPTO’s key goal regarding trademarks is to protect consumers and businesses by ensuring trademarks clearly identify the source of goods or services. It promotes fair competition by registering distinctive marks and preventing confusion in the marketplace.

Can a number be trademarked?

In short, yes. To successfully register a numeral as a trademark, the applicant must establish that the number in question possesses the requisite distinctiveness and is capable of functioning as an identifier of the source of goods or services. Numerals, by nature, are merely abstract symbols that denote quantity or value, and thus are not considered to be inherently distinctive under trademark law. Therefore, for a numeral to qualify for the USPTO’s protection, the applicant must show that the numeral has acquired distinctiveness. This level of distinctiveness must be demonstrated via evidence that the public has come to associate the numeral with the applicant requesting protection.

Additionally, the distinctiveness of a numerical mark often depends on the complexity of the number itself.  Generally, marks comprising multiple digits are considered stronger than single-digit numerals, as they are less likely to be viewed as merely descriptive or functional. However, that presents a challenge in this case as Jackson attempts to claim sole protection over his claim on the number “8.”

Jackson’s Basis for Opposition

At the heart of Jackson’s position are three marks which include registration for "2018 ERA 8 BY LAMAR JACKSON 2018" along with two of his pending marks, “ERA 8” and “ERA 8 BY LAMAR JACKSON.”[ii],[iii],[iv] The main goods and services these marks are affiliated with are clothing, headwear, athletic bags and active wear. Jackson's argument is that Earnhardt Jr.’s pending application seeks registration for similar goods, specifically clothing, and raises concerns that if the mark becomes registered, there is a significant likelihood for marketplace confusion.

Jackson’s Notice of Opposition argues that he has achieved substantial consumer recognition linking him directly to the number 8 due to his years of collegiate and NFL play along with the sale of his branded merchandise. With a pair of MVP awards at the professional level as well as a Heisman thanks to his on-field success while at the University of Louisville, Jackson certainly can make the argument that he has become a household name around the country. Jackson’s concern is that if the USPTO is to grant Earnhardt Jr.’s application for protection of his mark, consumers may conclude that the two athletes are commercially affiliated, thereby infringing on Jackson’s trademark rights and damaging the distinctiveness of his brand.

Likelihood of Consumer Confusion

This case falls squarely within Section 2(d) of the Lanham Act, which addresses the likelihood of confusion between Jackson’s marks and Earnhardt Jr.’s proposed registration.[v] While both parties have established themselves as recognizable figures in their respective sports, the question is whether the stylized design of the numeral "8", coupled with overlapping goods those marks are intended to cover, is enough to cause confusion in the marketplace.

Both Jackson and Earnhardt Jr. are prominent public figures with strong commercial followings in professional sports. However, the analysis is not limited to fame or celebrity status.  We must apply the DuPont factors, a balancing test, with a focus on: (1) the similarity of the marks in appearance, sound, connotation, and commercial impression; (2) the relatedness of the goods or services; (3) the trade channels through which the goods are marketed; and (4) the conditions under which the goods are purchased, including the degree of consumer care.[vi]

Here, there is a strong argument that the stylized "8" used by Earnhardt Jr., even if visually different, has a similar commercial impression as Jackson’s "ERA 8" brand, especially as both parties seek protection in overlapping classes of goods, specifically clothing and athletic wear. These are products typically sold through consumer channels that often involve levels of consumer care, which increases the likelihood of confusion.

Additionally, Jackson’s use of the number “8” in connection with his personal brand predates Earnhardt Jr.’s application and has arguably acquired secondary meaning through long-term use in commerce, public recognition, and associated merchandise. Further, Jackson has also demonstrated consistent efforts to enforce his rights, reinforcing the position that the number “8” has come to be associated with him in the eyes of the relevant consumer base.

Given these facts, the balance of these factors appears to favor Jackson. If Earnhardt Jr. is permitted to register a stylized numeral “8” for similar goods, there is a significant likelihood that it would not only confuse consumers but also dilute the distinctiveness and commercial strength of Jackson’s mark. As such, this matter presents a strong case for refusing registration of Earnhardt Jr.’s mark on the grounds of likely confusion.

Proceedings at the Trademark Trial and Appeal Board

The opposition will proceed before the Trademark Trial and Appeal Board (“TTAB”), a neutral adjudicative body within the USPTO that functions similarly to a court for trademark registration matters.[vii] The TTAB’s trademark judges determine a party’s right to register a federal trademark registration. In this case, their role is strictly limited to assessing whether Earnhardt Jr.’s application may proceed to registration following the opposition by Jackson which claims a likelihood of confusion and false suggestion of a connection with his brand.

A History of Opposition

It is worth noting that Jackson is no stranger to defending his marks. In July of 2024, he filed a similar opposition against former Dallas Cowboys quarterback Troy Aikman, who sought to trademark the term “EIGHT.” Jackson again claims that he "“has expended considerable time, effort, and expense in promoting, advertising, and popularizing the number “8” in connection with his personality and fame”.[viii]  This matter has yet to be resolved but it is clear that Jackson is willing to go to great lengths to ensure that his brand is protected in the marketplace.

Conclusion

This dispute highlights the evolving role of trademarks in athlete branding and the legal challenges associated with claiming exclusive rights to commonly used symbols. While Lamar Jackson’s enforcement effort demonstrates the value athletes place on personal brand protection, securing exclusive rights to a standalone numeral remains a high bar under current trademark law. Nonetheless, the TTAB’s decision could shape how future trademark applications involving athletes, and especially their numbers, are evaluated and enforced.

 Andrew Majka-Sunde is a graduate of Western New England Law School ’21 and most recently served as Corporate Counsel for the Moses-Weitzman Health System in Middletown, CT.  He can be reached at LinkedIn here.

Sources:

[i] Lamar Jackson v. DEJ Holdings, LLC, Notice of Opposition, Opp. No. 91294532 (T.T.A.B. Apr. 2, 2025), https://tsdr.uspto.gov/caseviewer/pdf?caseId=98513061&docIndex=1&searchprefix=sn#docIndex=1 (last visited Apr. 3, 2025).

[ii] 2018 ERA 8 BY LAMAR JACKSON 2018, U.S. Trademark Reg. No. 7,279,545 (registered Jan. 16, 2024), https://tsdr.uspto.gov/#caseNumber=88412674&caseType=SERIAL_NO&searchType=statusSearch (last visited Apr. 4, 2025).

[iii] ERA 8, U.S. Trademark Application Serial No. 97/357,201 (filed Apr. 11, 2022), https://tsdr.uspto.gov/#caseNumber=97357201&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch (last visited Apr. 4, 2025).

[iv] ERA 8 BY LAMAR JACKSON, U.S. Trademark Application Serial No. 88/835,266 (filed Mar. 16, 2020), https://tsdr.uspto.gov/#caseNumber=88835266&caseSearchType=US_APPLICATION&caseType=DEFAULT&searchType=statusSearch (last visited Apr. 4, 2025).

[v] Lanham Act § 2(d), 15 U.S.C. § 1052(d) (2020)

[vi] In re E.I. DuPont DeNemours & Co., 476 F.2d 1357 (C.C.P.A. 1973)

[vii] Trademark Trial and Appeal Board (TTAB), U.S. Patent & Trademark Office, https://www.uspto.gov/trademarks/trademark-trial-and-appeal-board/about-ttab (last visited Apr. 4, 2025).

[viii] Mike Masnick, Lamar Jackson & Troy Aikman Fight Over ‘Eight’ Trademark, Showing the Absurdity of Modern Trademark, Techdirt (July 25, 2024), https://www.techdirt.com/2024/07/25/lamar-jackson-troy-aikman-fight-over-eight-trademark-showing-the-absurdity-of-modern-trademark/.