By Trish Sawhney
In March 2019, Nike Inc. filed a trademark application with UPSTO for the term FOOTWARE. You may assume I have made a mistake in the spelling of FOOTWARE but I assure you, there was no typo on my part: the athletic company is hoping to trademark the term FOOTWARE in relation to hardware and software products used on or within footwear products. Nike hopes to use the brand FOOTWARE to market its smart footwear.
Understandably, many rival companies have expressed concern about this potential registration. Puma SE not only filed a “letter of protest” with the USPTO but has also initiated opposition proceedings against Nike’s application, asserting that the term FOOTWARE is ‘merely descriptive’ of technology-based footwear and therefore is not registrable.
In its Notice of Opposition, Puma argues that Nike is not the only company that “combines footwear, hardware, and/or software technologies,” and so, “just as consumers understand that spyware describes software combined with spying, they will also understand that ‘footware’ describes software combined with foot products, including footwear.”
We will be closely monitoring this case and providing updates. If Nike can register its FOOTWARE trademark, it could be the beginning of a remarkable branding scheme.