IP Law Daily, TRADEMARK—TTAB: Nike blocks GOT EM KICKS registration over likelihood of confusion with GOT ’EM mark, (Aug 10, 2026)

By Ravindra Kumar Singh, B.L.

Nike established priority in its inherently distinctive GOT ’EM mark, while the similarity of the marks and closely related sneaker-purchasing services made consumer confusion likely.

In a non-precedential decision, the Trademark Trial and Appeal Board (TTAB) sustained Nike, Inc.’s opposition to registration of GOT EM KICKS for retail consignment stores featuring retro sneakers and clothing. The Board found that Nike established prior common-law rights in GOT ’EM for its sneaker-purchasing software application and that the relevant DuPont factors supported a likelihood of confusion under Section 2(d) of the Trademark Act (Nike, Inc. v. Gotemkicks, No. 91287908 (T.T.A.B. Jul. 29, 2026)).

Background. Gotemkicks (applicant) sought registration on the Principal Register of the standard-character mark GOT EM KICKS, with “KICKS” disclaimed, for “Retail consignment stores featuring retro sneakers and clothing” in International Class 35. Application Serial No. 97315615 was filed on March 16, 2022, under Section 1(b) of the Trademark Act based on a bona fide intention to use the mark in commerce. Gotemkicks began using the mark when it opened its consignment store on April 1, 2022.

Nike (opposer) opposed registration under Section 2(d), relying on common-law rights in its GOT ’EM mark for its SNKRS platform, including a computer software application, web platform, and retail services featuring footwear and clothing. Nike also alleged ownership of a later-filed application for the standard-character mark GOT ’EM for online, traditional, and pop-up retail store services featuring footwear and clothing in International Class 35. Nike ultimately pursued its likelihood-of-confusion claim based on its prior common-law rights.

Third-party evidence excluded. Before addressing the merits, the TTAB excluded Gotemkicks’ evidence of third-party GOT EM-formative uses and registrations. During discovery, Nike had requested information and documents supporting Gotemkicks’ assertion that numerous third parties used GOT EM or variations of the phrase for footwear or retail services. Gotemkicks initially invoked attorney-client privilege or work-product protection and later represented that it was withholding no nonprivileged information. It nevertheless introduced responsive third-party materials during its testimony period.

Applying Federal Rule of Civil Procedure 37(c)(1), the Board found the nondisclosure neither substantially justified nor harmless. Citing Great Seats, Inc. v. Great Seats, Ltd., No. 91189540, 2011 TTAB LEXIS 365, at *11-12 (TTAB 2011), the TTAB considered the surprise to Nike, its ability to cure the surprise, potential disruption, the importance of the evidence, and Gotemkicks’ explanation for nondisclosure. A party could not withhold responsive evidence during discovery on privilege grounds and then rely on that same evidence at trial. The exclusion ultimately left Gotemkicks without evidentiary support for its argument that Nike’s mark was weakened by third-party use.

Priority and distinctiveness. Because Nike relied on common-law rights rather than a prior registration, it had to establish proprietary rights predating Gotemkicks’ March 16, 2022, constructive-use date. Citing Herbko International, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1162 (Fed. Cir. 2002), the Board explained that proprietary rights may arise from prior trademark or service-mark use or other use sufficient to establish such rights.

Nike’s witnesses testified that the SNKRS platform launched in February 2015 and that GOT ’EM had been displayed to consumers who successfully purchased items through it. Since its launch, the platform attracted millions of active users and sold millions of footwear and clothing items. Nike also used GOT ’EM at physical pop-up stores and on promotional materials.

Although the record contained evidence reaching back to 2015, the TTAB found clear, consistent, and corroborated evidence establishing use of the stylized GOT ’EM mark with Nike’s computer software application featuring footwear for sale since at least March 27, 2018. That preceded Gotemkicks’ constructive use date by nearly 4 years.

The Board rejected Gotemkicks’ contention that GOT ’EM was merely a commonplace celebratory expression that failed to function as a trademark. Third-party articles associated the phrase specifically with Nike and its SNKRS platform, while the record did not establish the claimed ubiquitous third-party use. The TTAB also found GOT ’EM suggestive and inherently distinctive because the phrase did not directly describe Nike’s software application but suggested that a user had successfully acquired desired footwear through it. Nike, therefore, established priority in its common-law mark.

Related services and trade channels. Applying the factors set out in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 1361 (C.C.P.A. 1973), the TTAB found the parties’ respective offerings closely related. Gotemkicks provided retail consignment store services featuring retro sneakers and clothing, while Nike used GOT ’EM with a computer software application featuring footwear for sale. Both served the same basic purpose of enabling consumers to purchase footwear, including Nike products.

The limitation of Gotemkicks’ services to consignment stores featuring “retro sneakers” did not distinguish the offerings. Nike itself offered retro sneakers through its platform, and Gotemkicks’ owner testified that he purchased Nike products through Nike stores, outlets, and an application for resale. The evidence also showed that consumers were accustomed to purchasing footwear both through applications and physical stores. The second and third DuPont factors, therefore, favored a likelihood of confusion.

Strength of GOT ’EM. Nike presented evidence of millions of footwear and clothing sales through SNKRS, more than nine million active U.S. users, more than 700 million platform visits, thousands of social-media posts, and unsolicited media attention. The TTAB nevertheless declined to place GOT ’EM at the high end of the commercial-strength spectrum.

The evidence did not establish how many sales occurred specifically through the software application or how many consumers encountered the particular stylized version of GOT ’EM on which Nike relied. Nike also provided insufficient context for its raw sales figures and no circulation information for the websites containing media coverage. The fifth DuPont factor was therefore neutral, and GOT ’EM received the normal scope of protection afforded inherently distinctive marks. Gotemkicks, meanwhile, failed to diminish the mark’s strength under the sixth factor because its third-party evidence had been excluded.

Marks were similar. The first DuPont factor weighed heavily toward confusion. The Board found GOT EM to be the dominant portion of the applicant’s GOT EM KICKS mark because those words appeared first, and “KICKS” was disclaimed. The entirety of Nike’s GOT ’EM mark, therefore, appeared in the dominant portion of the applied-for mark.

The marks were similar in appearance and sound and conveyed the same connotation and commercial impression in the context of footwear purchasing—successfully obtaining a pair of shoes. Gotemkicks argued that the additional word KICKS and the apostrophe in Nike’s mark distinguished them. The TTAB disagreed. The apostrophe did not alter pronunciation or meaning, while KICKS, slang for shoes or sneakers, was insufficient to distinguish the marks when both were used in connection with footwear.

No actual confusion. Gotemkicks also relied on approximately three years of coexistence without reported actual confusion. However, the company operated only a single location and its sales were relatively low. Citing In re Majestic Distilling Co., 315 F.3d 1311, 1317 (Fed. Cir. 2003), the Board noted that although evidence of actual confusion can be highly probative, its absence carries little weight without a significant opportunity for confusion to occur. The seventh and eighth DuPont factors were neutral.

Balancing the factors, the TTAB found that the marks were similar, the parties’ sneaker-purchasing offerings were closely related, and their trade channels and consumers overlapped. The remaining relevant factors were neutral, and none weighed against a likelihood of confusion. Accordingly, the Board sustained Nike’s opposition and refused registration of GOT EM KICKS under Section 2(d).

The Case is Opposition No. 91287908.

Judge: Allard, M.

Attorneys: Michael J. Harris (Arnold & Porter Kaye Scholer LLP) for Nike, Inc. Erik M. Pelton (Erik M. Pelton & Associates, PLLC) for Gotemkicks.

Companies: Nike, Inc.

Cases: Trademark USPTO