IP Law Daily, TRADEMARK—TTAB: Basketball phrase saves BRECKIN ANKLES trademark, (Jul 28, 2026)

By George Basharis, J.D.

Consumers would view the proposed mark as a reference to a well-known basketball expression rather than a variation of an existing clothing brand, despite overlapping apparel goods.

Consumers are more likely to view BRECKIN ANKLES as a reference to the familiar basketball expression “breaking ankles” than as a variation of an existing apparel trademark, allowing the basketball-themed clothing brand to proceed toward registration despite covering clothing sold through the same trade channels as an earlier mark. Although the goods overlapped and ordinarily would support a finding of likely confusion, purchasers of basketball-related apparel would understand BRECKIN ANKLES as slang for an athletic maneuver, while the cited BREKENS B mark would instead be perceived as a personal name, the Trademark Trial and Appeal Board concluded in reversing the refusal to register (In re Andrew Riess, No. 98436600 (T.T.A.B. Jul. 23, 2026)).

Background. The application sought registration of BRECKIN ANKLES for clothing, footwear, headwear, and basketball-related apparel accessories in International Class 25. After several rounds of prosecution, the application was narrowed to apparel “to be used in relation to basketball,” together with basketball headbands and wristbands classified as clothing. The applicant also disclaimed the exclusive right to use the word “ANKLES.”

The examining attorney refused registration under Section 2(d) of the Trademark Act based on an existing registration for the stylized BREKENS B mark covering shirts, hats, tops, and pants. During prosecution, the applicant argued that his mark deliberately evoked the basketball phrase “breaking ankles,” a slang expression describing a dribbling move that causes a defender to lose balance, rather than a personal name. He supported that position with dictionary definitions, internet evidence, and examples of the phrase’s use in basketball culture.

The application originally covered both apparel and sporting goods, but the sporting goods were later divided into a separate application, leaving only the apparel-related goods at issue on appeal.

Identical goods. Applying the DuPont likelihood-of-confusion factors, the Board agreed with the examining attorney on several important points. It concluded that the goods identified in the application substantially overlapped with those in the cited registration. Because both parties claimed clothing such as tops, pants or bottoms, and headwear, the Board found the goods legally identical in part. The applicant’s additional limitation that its products would be used in relation to basketball did not narrow the cited registration, whose unrestricted identification was presumed to encompass basketball apparel.

Because the goods were legally identical in part, the Board presumed they would travel through the same trade channels to the same classes of purchasers. Consequently, those two DuPont factors strongly favored a likelihood of confusion. The Board further observed that when goods are legally identical, a lesser degree of similarity between competing marks is required to support a finding of likely confusion.

Different impressions. Those considerations, however, did not resolve the likelihood-of-confusion analysis. Instead, the appeal ultimately turned on the first DuPont factor, the similarity of the marks themselves. The examining attorney argued that BRECKIN closely resembled BREKENS, that “ANKLES” had been disclaimed and, therefore, deserved less weight, and that consumers would view both marks primarily as personal names. She further maintained that purchasers of ordinary clothing would not necessarily recognize the basketball expression “breaking ankles,” and would not perceive the applicant’s intended play on words.

The applicant responded that the marks differed in appearance, pronunciation, meaning, and overall commercial impression. According to the applicant, BRECKIN ANKLES intentionally echoed the widely recognized basketball expression “breakin’ ankles,” creating an entirely different commercial impression from the cited mark.

The Board agreed in part with both sides. It first concluded that BREKENS was the dominant portion of the cited mark because words generally make a greater impression on consumers than design elements, while the stylized letter “B” merely reinforced the wording. The Board likewise found that BRECKIN carried greater source-identifying significance than the disclaimed word “ANKLES,” while emphasizing that consumers remain unaware of disclaimers and perceive the mark as a whole. Even giving greater weight to BRECKIN and BREKENS, however, the Board concluded that the marks were sufficiently different.

Visually, the Board acknowledged that the dominant words resembled one another but found that the addition of “ANKLES” made the marks somewhat different in appearance. Aurally, it recognized that BRECKIN alone would not ordinarily be pronounced as “breaking.” Nevertheless, when spoken as part of the complete phrase BRECKIN ANKLES, consumers familiar with basketball culture would reasonably pronounce the mark much like the slang expression “breakin’ ankles,” reflecting the common practice of dropping the final “g” in conversational English.

Basketball meaning controls. The Board found the applicant’s evidence persuasive on the point that ultimately mattered most: the meaning conveyed by the proposed mark in the marketplace. The record included a definition from slang.net explaining that “breaking ankles” refers to a basketball move that causes a defender to stumble after being beaten off the dribble. The applicant also submitted an Oxford English Dictionary definition describing “ankle-breaking” as a basketball technique involving a sudden change of direction that leaves a defender off balance, along with internet search results linking the phrase to basketball highlight videos.

Although the examining attorney argued that the phrase lacked sufficient recognition among ordinary clothing purchasers, the Board focused on consumers most likely to buy the applicant’s basketball-related apparel. It reasoned that those purchasers would likely be familiar with the expression and would understand BRECKIN ANKLES as a slang variation of “breaking ankles.” The Board further explained that dropping the final “g” from “breaking” is a common feature of colloquial American English, making that pronunciation a reasonable possibility when consumers encountered the mark as a whole. That understanding sharply distinguished the proposed mark from the cited registration.

The Board concluded that BREKENS B would most naturally be perceived as a personal name, particularly because the stylized letter “B” reinforced that impression. By contrast, purchasers of the applicant’s basketball-related apparel would not view BRECKIN as a name when it appeared together with ANKLES. Instead, they would understand the phrase as suggesting that the products were associated with players capable of figuratively “breaking their opponents’ ankles” on the basketball court.

As a result, the Board found the marks only somewhat similar in appearance and sound but “quite dissimilar” in connotation and overall commercial impression. Therefore, it concluded that the first DuPont factor strongly favored the applicant.

Marks prevail. Balancing the relevant DuPont factors, the Board acknowledged that the examining attorney prevailed on the similarity of the goods, trade channels, and classes of purchasers. Those factors ordinarily would support a likelihood of confusion, particularly because legally identical goods require a lesser degree of similarity between competing marks.

Nonetheless, the Board concluded that the differences between the marks outweighed those considerations. Citing Federal Circuit precedent recognizing that a single DuPont factor may be dispositive, it determined that the distinct commercial impression created by BRECKIN ANKLES was sufficient to avoid confusion even though the parties’ goods overlapped and were presumed to travel through the same trade channels to the same classes of purchasers. Consumers encountering the marks would not likely believe the products originated from the same source. Accordingly, the Board reversed the Section 2(d) refusal and allowed the application for BRECKIN ANKLES to proceed toward registration.

The Case is Serial No. 98436600.

Attorneys: Brian D. Owens (Goodhue, Coleman & Owens, PC) for Andrew Riess. Betty Chang for the USPTO.

Cases: Trademark USPTO GCNNews