Max Verstappen's plans to launch a MAX 1 clothing range have run into a roadblock, as Nike successfully oppose his Benelux trade mark application on the basis of their rights in AIR MAX.
Nike have been producing trainers under their AIR MAX mark since 1987. The shoes, which are so popular that they have their own Wikipedia page, are easily recognisable thanks to the flexible plastic 'bubbles' in their mid-soles, which are filled with a pressurized gas to provide soft cushioning for the wearer.
Back in December 2021, Formula 1 driver Max Verstappen filed a trade mark application for the mark MAX 1 at The Benelux Office for Intellectual Property (BOIP, which is the registration office for trademarks in Belgium, the Netherlands, and Luxembourg). The application covered a variety of clothing goods, and retail and entertainment services.
The application was opposed in February 2022, and in February 2023 the BOIP issued their decision to refuse the application for the clothing goods due to a likelihood of confusion. This was because they found that:
- '[Visually]...the elements AIR and MAX carry equal weight in the overall impression. In the disputed sign the emphasis is on the word MAX. The number 1 will be seen as a specification of
MAX'. Paragraph 35
- '[Aurally] The Benelux consumer will pronounce [MAX 1] in his own Dutch or French
language, as MAX ÉÉN or MAX UN, with emphasis on the first part MAX' Paragraph 39.
- 'The signs [MAX 1 and AIR MAX] are visually and aurally similar to some degree. A conceptual comparison is irrelevant'. Paragraph 44
- 'The goods of the contested [MAX1] sign are partly identical and partly similar to the goods of the [AIR MAX] trademarks'. Paragraph 52
Additionally, Verstappen's team tried to argue that consumers will not be confused by the marks because MAX 1 refers to Max Verstappen and his race number 1 (Paragraph 59). The BOIP refused this defence also, holding that
- 'Opposition proceedings must be based on the ... sign as filed. [The BOIP] can't take into account the way in which the contested sign is used in practice'. Paragraph 59
This is certainly a setback for Verstappen's retail plans, however he can take some comfort in his dominant start to the season on track. He is already the overwhelming favourite for the Driver's Championship, which would see him top the podium for a third year running.
He best get back to the day job on track this weekend, and leave the trade mark battles to his attorneys.