WoooOOOooo! Legendary professional wrestler Ric Flair (aka “The Nature Boy”) (“Flair”) was recently denied trademark registration on the Principal Register by the United States Patent and Trademark Office (USPTO) for the NATURE BOY trademark for t-shirts and related clothing, forcing the former pro wrestling heavyweight champ to tap out. (In re Ric Flair, LLC, Serial No. 87884420 (TTAB Apr. 6, 2020) (non-precedential)).

Widely regarded as one of the all-time great professional wrestlers, Flair helped bring the sport to national prominence over the span of his 40-year career. He has been officially recognized by the WWE as a 16-time World Champion: eight-time NWA World Heavyweight Champion, six-time WCW World Heavyweight Champion, and two-time WWF Champion. He’s easily recognized by his bleach-blonde hair, unmistakable rants and bluster, wonderfully garish robes and infamous finishing move, the Figure-Four Leg Lock. Always “stylin’ and profilin’”, Flair has used the moniker “The Nature Boy” to propel his flamboyant persona since the 1970’s.

In April 2018, Flair filed an application with the USPTO seeking to register the NATURE BOY mark for various classes of goods, including cell phone cases, beach towels, and Class 25 clothing items such as t-shirts, tank-tops, and sweatshirts. In August 2018, the Examining Attorney refused to register Flair’s mark for the Class 25 clothing because it resembled the existing mark NATURE BOYS (registered in 2016 for fishing-related apparel) and would likely cause consumer confusion between the marks. However, the Examining Attorney did approve the application to register the NATURE BOY for other classes of goods (e.g., cell phone cases and beach towels).

Under the federal Lanham Act, the USPTO may bar registration of an applied-for mark if it is so similar to a registered mark that it is likely consumers would be confused, mistaken, or deceived as to the commercial source of the goods and/or services of the parties. See 15 U.S.C. §1052(d). Likelihood of confusion is determined on a case-by-case basis by applying a multifactor test. This test, which is measured using the “DuPont Factors,” considers 13 factors, including the similarity or dissimilarity of the marks in their entireties as to appearance, the fame of the prior mark, and the number and nature of similar marks in use on similar goods. As the TTAB explained, not all of the likelihood of confusion factors are relevant to every trademark examination, and only factors of significance to the particular mark need be considered, which in this case, included the similarities between the marks and the similarities between the goods and services.

Declaring this registration battle as a best two-out-of-three falls, Flair shook off this initial defeat and filed an appeal with the TTAB (as opposed to bringing his appeal to the informal wrestling tribunal known as Piper’s Pit). Flair argued that, concerning the similarity of the marks, the Examining Attorney cited no evidence when discussing the commercial meaning and connotation of the NATURE BOY mark, relying solely on the fact that Flair’s mark is the singular form of the NATURE BOYS mark and downplaying the fact that due to Flair’s fame, the public would associate NATURE BOY with the famous wrestler himself and not necessarily with NATURE BOYS fishing apparel. 

In the main event, the TTAB, playing the heel, affirmed the agency’s refusal to register Flair’s mark NATURE BOY for clothing.  

In breaking down the similarity and dissimilarity and nature of the goods, the TTAB found that the already-registered mark NATURE BOYS had a description of goods that included “shirts” generally, and thus was not limited to “fishing shirts” (and would necessarily include t-shirts and tank tops).  As such, the TTAB found that description of goods concerning Flair’s and the already-registered NATURE BOYS mark were legally identical. When it came to shaking loose from this broad definition of “shirts” in this instance, Flair couldn’t break the TTAB’s arm bar. The TTAB concluded that there needn’t be a similarity as to each product listed in the description of goods, and that it was “sufficient for a refusal based on likelihood of confusion that we find any item encompassed by the identification of goods in a particular class in the application and registration related.”

The second factor considered was the similarity of channels of trade and classes of purchasers of the products. Here, the Board quickly pinned Mr. Flair against the turnbuckle, stating that because the goods described in the application are legally identical to goods covered by the NATURE BOYS registered mark, there is a presumption that the channels of trade and classes of purchasers are the same.

The final factor that the Board considered was the similarity or dissimilarity of the marks, focusing on the likelihood of confusion of the marks in their appearance, sound, connotation, and commercial impression. As the TTAB noted, like the first factor, similarity in any one of these elements is sufficient to find that the marks are confusingly similar. More specifically, the TTAB stated that the proper test is not a side-by-side comparison of the marks, but instead whether the marks are sufficiently similar in terms of their commercial impression, “such that people who encounter the marks would be likely to assume a connection between the parties.” In this case, the Board noted that the only difference between Mr. Flair’s NATURE BOY mark and the already-registered mark NATURE BOYS – both of which would appear on t-shirts – is the pluralization of the word “Boy.”

With no one to tag to bring in a new grappler, Flair attempted to stage a late comeback with a final move, arguing that while the marks may have similarities, the marks have different connotations since NATURE BOY refers only to himself, the famous wrestler. In essence, Flair argued that because consumers recognize NATURE BOY as his nickname, the fame of the mark should change the meaning and commercial impression and the Board’s analysis. The Board quickly put this argument on its back and Flair into submission, stating that the principal consideration is the likelihood of confusion “based on the marks that appear on the drawing pages and in connection with the description of goods in the application and registration at issue.” In placing Flair in an inescapable cradle, the Board concluded: “[B]ecause neither the mark, nor the description of goods, refers to any individual, there is no basis on which we can find that the meaning and commercial impression of Applicant’s mark NATURE BOY differs from that of the registered mark NATURE BOYS.”

In sum, Flair failed to show that in the context of t-shirts and tank-tops that NATURE BOY has a specific meaning in connection with Flair the wrestler. The Board stated that the calculus might be different if Flair’s clothing was limited to “wrestling shirts” or “wrestling tank-tops,” or presumably if the applied-for mark was something akin to THE NATURE BOY RIC FLAIR. 

While Flair was handed a defeat at the hands of TTAB, he may still, among other things, seek a rematch at the Federal Circuit – indeed, as Flair was wont to boast: “To be the man, you gotta beat the man.” Regardless, with Flair still having the NATURE BOY mark registered for other classes of goods, and perhaps wanting to create new branding opportunities based on his renown, it’s unlikely that this will be his last bout in the USPTO squared circle.