IP Law Daily, TRADEMARK—Fed Cir.: Cancellation of Game Plan’s trademark affirmed in athletic branding dispute, (Dec 11, 2025)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The Federal Circuit affirmed the TTAB’s decision to cancel a mark based on priority of use, finding that assignment of common law rights to “MORE THAN AN ATHLETE” was valid for Uninterrupted IP, LLC.

The U.S. Court of Appeals for the Federal Circuit affirmed the decision of the Trademark Trial and Appeal Board (TTAB) to cancel Game Plan, Inc.’s registration for the mark “I AM MORE THAN AN ATHLETE. GP GAME PLAN” and dismiss its opposition to Uninterrupted IP (UNIP), LLC’s intent-to-use applications. UNIP, a media company, filed six applications for marks incorporating “I AM MORE THAN AN ATHLETE” and “MORE THAN AN ATHLETE” for clothing and entertainment services. On appeal, the Federal Circuit determined that the TTAB’s priority analysis was proper and the TTAB did not err by excluding evidence not submitted during the designated trial period (Game Plan, Inc. v. Uninterrupted IP, LLC, No. 24-1407 (Fed. Cir. Dec. 10, 2025)).

Background. Game Plan filed for registration on December 28, 2016, for the mark I AM MORE THAN AN ATHLETE. GP GAME PLAN for “charitable fundraising services by means of selling t-shirts to raise funds for educational and entertainment programs.” The registration was issued on June 5, 2018. In March 2018, UNIP filed six intent-to-use applications for marks incorporating the phrases I AM MORE THAN AN ATHLETE and MORE THAN AN ATHLETE in standard and stylized fonts (UNIP’s proposed marks). UNIP’s proposed marks cover clothing and entertainment services such as a website featuring non-downloadable videos, podcasts, films, and social media posts in the field of sports. On November 28, 2018, Game Plan initiated an opposition proceeding with the TTAB to oppose registration of UNIP’s proposed marks. Game Plan asserted that there was a likelihood of confusion, under Section 2(d) of the Lanham Act between UNIP’s proposed marks and its registered mark and that it had priority over UNIP’s proposed marks. Game Plan also asserted common law rights as a basis for its Section 2(d) claim against UNIP’s applications.

In response, UNIP denied any likelihood of confusion between the marks and alternatively counterclaimed to cancel Game Plan’s registration under Section 2(d) of the Lanham Act. UNIP asserted that cancellation was proper because, if there was a likelihood of confusion, it had priority over Game Plan’s mark based on its common law rights in the mark MORE THAN AN ATHLETE. The TTAB dismissed Game Plan’s opposition because Game Plan had submitted no evidence at trial. The TTAB found that UNIP acquired valid and enforceable common law rights in the mark MORE THAN AN ATHLETE from Ms. DeAndra Alex and her company, More Than an Athlete, Inc. (MTAA), which had used the mark MORE THAN AN ATHLETE since at least 2012 in connection with clothing and community events (2019 Assignment).

Accordingly, the TTAB held that UNIP had priority over Game Plan and cancelled Game Plan’s registration. Game Plan appealed. Game Plan argued that the TTAB erred in determining that UNIP had priority over Game Plan’s mark based on the 2019 Assignment of common law trademark rights, and that the TTAB failed to review evidence supporting its assertion that the 2019 Assignment was invalid.

Priority of use. Game Plan asserted that the 2019 Assignment violated the trademark antitrafficking rule under 15 U.S.C. § 1060(a)(1) for two reasons: (1) the 2019 Assignment was an assignment in gross; and (2) it constituted an improper assignment of an intent-to-use application.

However, the Federal Circuit found that the 2019 Assignment expressly defined the purchased assets as trademarks, among other intellectual property, “together with the goodwill of the business associated therewith.” This evidence supported the TTAB’s determination that the mark MORE THAN AN ATHLETE was not divorced from its goodwill when assigned. Further, UNIP’s use of the mark was substantially similar to Ms. Alex’s use, and UNIP and MTAA shared a common purpose and audience. UNIP also retained Ms. Alex as a consultant, which demonstrated continuity of goodwill associated with the acquired mark. Therefore, the 2019 Assignment did not constitute an assignment in gross. Next, the appellate court found that UNIP did not assign its pending intent-to-use applications. Rather, it received an assignment of preexisting common law rights to an already-used mark. Section 1060(a)(1) does not prohibit the assignment of such rights. Thus, UNIP did not violate § 1060(a)(1) when it purchased common law rights to the mark MORE THAN AN ATHLETE.

The appellate court next analyzed Game Plan’s argument that UNIP’s 2019 Assignment must be treated as a substantive amendment to its six intent-to-use applications and therefore prohibited because the assignment occurred after Game Plan filed its Notice of Opposition. However, Game Plan cited no authority supporting its claim that the acquisition of common law trademark rights constitutes an “amendment in substance” within the meaning of 37 C.F.R. § 2.133(a). The appellate court determined that because the TTAB’s decision rested on validly assigned common law rights and not on UNIP’s six intent-to-use applications, any procedural limitations on amending those applications were irrelevant to the TTAB’s priority analysis.

Failure to review evidence. Lastly, Game Plan argued that the TTAB erred by failing to objectively review certain evidence that it had submitted to support its claims that UNIP’s actions constituted an assignment in gross. The Federal Circuit noted that Game Plan was advised regarding the proper procedures for submitting evidence but failed to follow them, and the TTAB did not abuse its discretion by declining to consider evidence that Game Plan had not entered into the trial record. Therefore, the TTAB did not err by excluding evidence not submitted during the designated trial period.

Accordingly, the Federal Circuit affirmed the TTAB’s decision.

The Case is No. 24-1407.

Judge: Reyna, J.

Attorneys: Ryan Laurence Jones (Ryan L. Jones Law, LLC) for Game Plan, Inc. Howard Shire (Troutman Pepper Hamilton Sanders LLC) for Uninterrupted IP, LLC.

Companies: Game Plan, Inc.; Uninterrupted IP, LLC

MainStory: TopStory Trademark FedCirNews GCNNews