Weighing Confusion Claims In Shoes-NFL Steakhouse TM Suit

This article first appeared in Law360’s Expert Analysis: Weighing Confusion Claims In Shoes-NFL Steakhouse TM Suit

While we primarily think of trademarks as brand names and logos, number trademarks can be surprisingly powerful. Seeing a 501 on jeans or a 911 on a car, most consumers immediately associate those numbers with a particular source. Once established in a market, number marks can become deeply embedded in consumer perception.

Patrick Mahomes and Travis Kelce, two of the most recognizable names in professional football, sought to create their own number brand when they named their Kansas City steakhouse 1587 Prime. They likely did not anticipate that 1587 Sneakers Inc., a footwear company using the same number, would respond with a trademark lawsuit in the U.S. District Court for the Southern District of New York alleging likelihood of confusion.

The case, filed Feb. 17 as 1587 Sneakers Inc. v. Kelce, raises a common but genuinely difficult trademark question: How much does it matter that the parties operate in very different industries?

Frequently, a significant distance between goods or services presents a substantial obstacle to a confusion claim. But it is not automatically dispositive. Trademark infringement turns on a multifactor likelihood-of-confusion analysis, and different factors can pull in different directions.

Trademark Infringement and the Likelihood-of-Confusion Standard

Federal trademark law, governed by the Lanham Act, protects mark owners against thirdparty uses that are likely to cause consumer confusion as to source, sponsorship or affiliation. Although circuits articulate their tests differently, the factors substantially overlap. The U.S. Court of Appeals for the Second Circuit’s Polaroid test, the U.S. Court of Appeals for the Ninth Circuit’s Sleekcraft factors and the U.S. Court of Appeals for the Fifth Circuit’s digits of confusion all examine the following factors, in various formulations:

• Similarity of the marks;
• Proximity of the goods;
• Strength of the senior mark;
• Evidence of actual confusion;
• Marketing channels;
• Purchaser sophistication;
• Intent; and
• Likelihood of expansion.

No single factor is determinative, and courts weigh them together. A nearly identical mark can avoid liability where the goods are sufficiently remote, while a less similar mark may infringe in a closely adjacent market. The 1587 dispute demonstrates that tension starkly.

Similarity of the Marks

On similarity, the footwear company begins from a strong position. The dominant element of both brands is the number 1587. Although the restaurant uses 1587 Prime, courts evaluate marks in their overall commercial impression, and identical dominant elements often weigh heavily in favor of confusion. The addition of a descriptive or laudatory term such as “Prime” may not meaningfully distinguish the source-identifying portion of the mark.

That said, identical trademarks can coexist in different markets. “Delta” identifies both an airline and a faucet manufacturer. “Dove” identifies soap from one source and chocolate from another. Trademark law does not grant universal exclusivity in a term across all industries. Similarity of marks is important, but it is only one piece of the analysis.

Strength of the Senior Mark

The strength inquiry has two dimensions: conceptual strength and commercial strength. A number used arbitrarily in connection with footwear may be conceptually distinctive. But commercial strength depends on marketplace recognition. How widely known is the footwear brand? Is it national or regional? Does it enjoy significant advertising exposure?

If the mark is commercially modest, courts may be reluctant to grant it broad cross-industry protection absent compelling evidence of likely confusion. By contrast, a mark with strong consumer recognition is more likely to receive a wider zone of protection because consumers more readily assume that identical uses indicate affiliation or expansion.

Proximity of the Goods

At first glance, shoes and steakhouses appear to occupy distant commercial territory. They serve different functions, involve different purchasing motivations and traditionally travel through different channels of trade. That distance weighs against a finding of confusion.

However, courts assess proximity based on how goods are actually marketed and sold, not merely on their headline categories. If a restaurant brand also sells apparel — such as hats, shirts, hoodies or other merchandise bearing the mark — the analysis changes. Branded apparel may move through online retail channels similar to those used by a footwear company. Overlapping merchandise categories can narrow what initially appears to be a wide commercial gulf.

Modern branding practices further complicate the analysis. Consumers today are accustomed to lifestyle brands, celebrity ventures and cross-category expansion. Celebrity athletes routinely move into apparel, hospitality and consumer products. That reality does not eliminate the proximity problem, but it makes affiliation-based confusion more plausible than it might have seemed decades ago.

Thus, the plaintiff must articulate a credible theory: not necessarily that diners believe the steakhouse is owned by a shoe company, but that consumers encountering identical branded merchandise could reasonably assume sponsorship, collaboration or common ownership.

Fame and Dilution

If the footwear mark were famous in the statutory sense — that is, if it were widely recognized by the general consuming public — it could potentially invoke federal antidilution protection, which does not require proof of likely confusion.

But dilution protection is reserved for a narrow class of household-name brands. Absent evidence that 1587 enjoys that level of national recognition, the plaintiff is confined to the traditional confusion framework.

Reverse Confusion

The more analytically promising theory for the footwear company is reverse confusion. Reverse confusion arises when a commercially dominant junior user overwhelms a smaller senior user, causing consumers to believe the senior user’s goods originate with, or are affiliated with, the junior user. The harm is not misdirected sales at the restaurant. It is the loss of control over the senior user’s own brand identity.

Celebrity-backed ventures can create precisely this dynamic. A highly publicized restaurant associated with nationally prominent athletes may rapidly saturate media and social channels. If that exposure becomes substantial enough, consumers encountering the footwear brand could mistakenly assume it is connected to the more famous venture. In that scenario, the senior user risks becoming an appendage of the junior user in the public imagination.

Courts have recognized reverse confusion as a cognizable theory of liability under the Lanham Act since at least the U.S. Court of Appeals for the Seventh Circuit’s 1992 decision in Sands Taylor & Wood Co. v. Quaker Oats Co., and the U.S. Court of Appeals for the Third Circuit provided a thorough analysis in the Fisons Horticulture Inc. v. Vigoro Industries Inc. ruling from 1994. Not all circuits have embraced the doctrine with equal enthusiasm, but it is well established in most jurisdictions.

Even under a reverse-confusion theory, however, proximity remains relevant. Courts generally require at least some degree of relatedness or plausible marketplace overlap. Reverse confusion does not create automatic liability across entirely unrelated industries. The plaintiff would need to demonstrate that the junior user’s prominence meaningfully interferes with its ability to exploit and expand its mark.

Remedies in reverse-confusion cases often emphasize injunctive relief rather than disgorgement of the junior user’s profits. The focus is on preventing further erosion of the senior user’s brand distinctiveness and preserving its ability to control its own commercial identity.

Likely Trajectory

In a traditional forward-confusion theory, the plaintiff faces meaningful obstacles. The distance between core restaurant services and footwear remains significant, and courts frequently treat substantial product separation as a strong counterweight to identical marks.

The reverse-confusion theory is more nuanced and potentially more viable, particularly if the restaurant’s branding expands into apparel or if the celebrity association generates substantial media saturation. Success, however, would depend on concrete evidence, such as market recognition data, consumer perception evidence or demonstrable marketplace interference, rather than mere speculation.

Conclusion

The 1587 litigation highlights the dual function of trademark law. It protects consumers from being misled at the point of sale and safeguards brand identity against being overwhelmed in the marketplace. Forward confusion addresses the former risk. Reverse confusion addresses the latter, guarding smaller senior users from being eclipsed by more commercially dominant entrants.

The plaintiff’s forward-confusion claim faces substantial headwinds from the goods proximity problem. The reverse-confusion theory is more viable, but it still requires demonstrating that Mahomes and Kelce’s celebrity presence has genuinely displaced the shoe brand in public consciousness and that courts should care about that displacement even where the underlying goods are dissimilar. That is a harder factual and legal showing than it might initially appear.

The 1587 dispute illustrates that trademark law is less about categories and more about perception. Identical marks can coexist across industries, but even those used for distant goods can still collide when branding practices blur traditional boundaries.

The ultimate question is not whether shoes and steakhouses seem unrelated in theory, but whether consumers are likely to connect them in practice. That inquiry, grounded in evidence rather than assumption, will determine who’s got whose number.