Nike Tried to Revive a Trademark It Let Die. A Small Brand Already Owned It.
On July 1, 2026, Sportico reported a significant development in one of the most founder-relevant trademark disputes in recent memory. Nike persuaded a federal judge to deny Louisiana-based soccer apparel company Total90 LLC an injunction that would have stopped Nike from a "marketing blitz" using the term "Total 90." The case, filed in the U.S. District Court for the Eastern District of Louisiana, is now headed toward a trial date set for March 1, 2027. A settlement conference was also scheduled before U.S. Magistrate Judge Michael B. North on July 20.
Here is the core of what happened, in plain English: Nike formally abandoned its trademark registration for "Total 90" in 2019. Hugh Bartlett, a Louisiana-based engineer and youth soccer coach, registered "TOTAL90" in February 2022. Total90 claims that after Nike relinquished its registration, it "lawfully registered and invested in" the TOTAL90 name, only for Nike to reenter the market in March 2025 using the same mark on footwear.
The complaint argues that Nike's relaunch of its iconic Total 90 soccer line is misleading shoppers, erasing the identity of Total90's own brand, and creating what the law calls reverse confusion. According to the lawsuit, the company has been using its Total90 mark for years on clothing, soccer gear, and sports media services. It owns two federal trademark registrations covering apparel, accessories, fantasy sports content, blogs, and online sports analysis. The brand sponsors local soccer leagues, runs events, and promotes its products across social media and soccer-focused platforms.
So why did the judge deny Total90's injunction? The court found evidence that Nike had continued using the mark on a limited basis after its registration lapsed. The use was not extensive, but it was enough to undermine Total90 LLC's argument that Nike had abandoned its rights. Under U.S. trademark law, abandonment requires more than just non-use. It requires both non-use and an intent not to resume use.
Total90 losing in its quest for a preliminary injunction does not mean it has lost the case, which remains on the docket. However, Nike has thus far prevailed on key legal arguments.
Why This Case Matters for Founders and Small-Business Operators
This is not just a sports industry story. It is a masterclass in why a thorough trademark strategy must come before you spend a dollar on branding, packaging, or marketing. The Total90 situation illustrates two problems that hit startups from opposite directions: a small brand that picked a name without fully understanding the prior user's residual rights, and a giant brand that let a registration lapse and then tried to use its market power to take the name back anyway.
Both sides are paying lawyers. Both sides face uncertainty. Both sides could have avoided this with better upfront research. That is the lesson every founder needs to internalize before they fall in love with a name.
5 Specific Founder Takeaways
- A lapsed registration is not a green light. A lapsed federal trademark registration does not automatically free a mark for others to use. Trademark rights may survive if the owner continues using the mark and can show plans to resume use. When you do a trademark availability check, you must look beyond the USPTO register. You need to investigate whether a prior user has ongoing common law rights, even without a live registration. This is one of the most dangerous blind spots in a basic free trademark search.
- Knowing how to search a trademark means going deeper than one database. Many founders ask "is my business name trademarked?" and then run a quick search of the USPTO database, see no live registration, and assume the coast is clear. That is not how trademark search works. A comprehensive trademark search step by step includes checking for common law use, state registrations, domain registrations, social media handles, and business entity filings. The Total90 situation shows exactly what can go wrong when a searcher stops at the federal register.
- Phonetic and sound-alike searches are not optional. The BEARFOOT mark was described by a WIPO panelist as phonetically identical to "barefoot" and existing in a crowded field of similar marks. In the same way, a sound-alike trademark check matters enormously in any category where descriptive or phonetic variants are common. If your name sounds like a well-known brand when spoken aloud, you have a problem even if the spelling is different. A phonetic trademark search should be a standard step in every naming workflow.
- Reverse confusion is a real and underappreciated risk for small brands. Most founders worry about being accused of copying a big brand. Fewer think about what happens when a big brand copies them. Reverse confusion, where a larger company's use of a similar mark swamps the smaller brand's identity in the market, is exactly what Total90 LLC alleges here. The company argues that Nike's renewed use of the mark across shoe, apparel, and accessories has overwhelmed its smaller brand, leading consumers to believe that Total90's products are affiliated with or authorized by Nike. This kind of harm can destroy a startup even if the startup is technically in the right.
- Even winning a registration does not guarantee you can use the name in peace. Total90 LLC had been using its mark for years and owned two federal trademark registrations. That did not stop Nike from reentering the market or from countersuing. Nike countersued Total90 LLC and accused it of bad faith conduct and fraudulently obtained trademark registrations. A registration is a powerful tool, but it is the beginning of protection, not the end of risk. If you pick a name in a crowded space or in a category dominated by a large incumbent, expect to defend it.
What This Means for Your Naming Workflow
The Total90 vs. Nike dispute is a reminder that the question "is my business name trademarked?" is really several questions bundled together, and most founders only answer the easiest one.
Here is a more complete naming workflow to build into your process from day one:
- Step 1. Search the USPTO database. The USPTO replaced its legacy TESS search tool with a newer search system. Use it to find live and dead federal registrations. Pay attention to dead registrations too, because a cancelled or abandoned mark can still signal a prior user with common law rights.
- Step 2. Run a phonetic trademark search. Think about how your name sounds out loud, not just how it looks on paper. Search for homophones, near-homophones, and creative spellings of the same word. Tools that perform a sound-alike trademark check can surface conflicts a basic keyword search misses entirely.
- Step 3. Search beyond the register. Check domain registrations, social media handles, state trademark databases, and business entity registries. Common law trademark rights in the U.S. arise from use, not registration. A company operating under a name for years without a federal registration still has rights you can infringe.
- Step 4. Assess the competitive landscape. If you are entering a category where large incumbents once used similar names, even lapsed ones, get a professional opinion before you invest in the brand. The cost of a trademark clearance opinion from a qualified attorney is a fraction of what litigation costs.FAQ
Is this legal advice?
No. This article is informational only and not legal advice.
Where should founders start?
Begin with a practical screening process in Trademark Search.
What should teams do before filing?
Review risk patterns, compare alternatives, and align on a filing plan in Pricing.
Informational disclaimer: this article is educational content and not legal advice.
Quick checklist
- Define naming goals and constraints.
- Screen for similar marks in adjacent categories.
- Compare top alternatives before committing.
- Document a clear go/no-go decision.
What should founders do if a match looks close?
Treat it as a review trigger and compare alternatives before proceeding.
How should teams prioritize multiple candidate names?
Rank names by defensibility, clarity, and strategic flexibility.
When should legal counsel be involved?
Involve counsel before filing and before major spend commitments.
Authoritative references
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