On January 7, 2013, Cincinnati Reds second baseman, and three-time Gold Glove Award-winner, Brandon Phillips, moved to dismiss Rawlings Sporting Goods Co. Inc.’s (“Rawlings”) trademark infringement action arising from his use of a glove with gold-colored features.
Rawlings is the company that grants baseball players the RAWLINGS GOLD GLOVE AWARD®, which consists of a gold-colored baseball glove attached to a solid base, dating back to 1957. Players who win the award are also given a functional baseball glove that has a metallic gold indicia on it. Last summer, Rawlings sued Phillips and Wilson Sporting Goods Company (“Wilson”) in the Eastern District of Missouri alleging that Wilson’s manufacture of, and Phillips’ use of, a baseball glove with metallic gold-colored webbing, web stitching and lettering infringe Rawlings’ rights in and to its GOLD GLOVE trademarks and the trade dress in its functional glove.
Rawlings’ amended complaint appears to rely on its GOLD GLOVE word marks, and only vaguely alludes to its trade dress, merely describing it as “the common law trade dress embodied in the distinctive famous metallic gold-colored baseball glove that forms the centerpiece of the world famous Rawlings GOLD GLOVE AWARD®.” In his motion to dismiss, Phillips argues that Rawlings’ complaint is fatally defective and should be dismissed because (1) Rawlings failed to meet the minimum pleading requirements for asserting trade dress in the color gold as applied to a baseball glove; and (2) Phillips and Wilson made no use of the words GOLD GLOVE or of any other word mark asserted by Rawlings in the action. Phillips also asserts that Rawlings failed to show any trademark rights in the color gold and that its trademark rights in the word GOLD GLOVE are insufficient to prevent the defendants’ use of the color. In late December, Wilson filed its own motion to dismiss asserting similar arguments.
This case is a good reminder of the distinction between word marks that include the name of a color and trademark rights in the colors themselves. It also cautions IP practitioners to keep in mind the heightened pleading requirements for common law trade dress claims. Rawlings has not yet responded to either motion, and it remains to be seen what its next steps will be. Gibbons will continue to monitor developments in this action.