Nike is facing a new lawsuit for allegedly co-opting a smaller company’s branding. According to a complaint filed with the U.S. District Court for the Eastern District of Louisiana, Total90, LLC claims that Nike is infringing its federally registered TOTAL90 trademark by using it to sell similar goods in overlapping sales channels. The twist: Nike previously used – and held a registration for – the TOTAL 90 mark before allegedly abandoning it in 2019.
In its November 14 complaint, Total90 asserts that after Nike allowed its trademark registration for TOTAL90 to lapse in 2019, it began using the name on apparel, soccer equipment, and digital services, including fantasy soccer leagues. The Louisiana-based plaintiff claims it first began using the TOTAL90 mark on soccer-related digital products in 2019 and expanded to apparel in 2022. It now holds two federal registrations for the mark and maintains that it has built significant goodwill in the brand through active marketing and promotion.
A Smaller Brand’s Mark – But a Name Nike Used First
The complexity in the case stems from Nike’s prior ownership of the mark. 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 company argues that Nike’s renewed use of the mark across shoe, apparel, and accessories, which are available on Nike.com and other major retail channels, has overwhelmed its smaller brand, leading consumers to believe that Total90’s products are affiliated with or authorized by Nike.
Rooted in claims of reverse confusion, the case hinges on the idea that Nike’s market dominance and extensive advertising have caused the public to view Total90 as the junior, unauthorized user of its own mark. With that in mind, Total90 brings federal and state trademark infringement and unfair competition claims and is seeking a temporary restraining order followed by a permanent injunction, along with cancellation of any Nike applications for the mark, treble damages, attorneys’ fees, Nike’s profits, and destruction of all infringing Nike materials.
Brand Enforcement & the Revival of Abandoned Marks
Hardly a routine infringement matter, this case is notable due to Nike’s prior use of the TOTAL 90 mark and the relatively quick turnaround between its alleged abandonment and Total90’s subsequent adoption. The clash raises important questions for retail brands – not just in sportswear, but also in fashion and even the auto sector, where legacy marks and brand revivals are increasingly part of commercial strategy.
Brand revivals, after all, are not unusual. In the luxury space, especially, it is common for stalwart companies to go dormant for years – sometimes decades – before being strategically acquired and revived. These revivals often raise legal questions around non-use and abandonment, but courts are showing greater willingness to recognize commercial efforts to keep dormant trademarks alive.
Look no further than Ferrari’s successful defense of its TESTAROSSA mark, despite not producing new cars under that name since the 1990s. After the EUIPO cancelled Ferrari’s TESTAROSSA registration for non-use, the General Court reversed, holding that second-hand sales, certification programs, and use on parts and accessories constituted genuine use. The decision highlights how legacy brands – particularly those with strong after-market activity or controlled resale channels – can maintain trademark rights well beyond the life of a product.
Nike may look to make a similar case (i.e., that it never actually abandoned the TOTAL 90 mark regardless of the state of its registration and/or that consumers still associate the TOTAL 90 mark with the Nike brand), particularly given the strength of the secondary market for sneakers. But to succeed, it would need to show that any continuing use of the TOTAL 90 mark is directly tied to the company itself – not simply activity in the broader resale space.
The case is Total90 LLC v. Nike, Inc., 2:25-cv-02325 (E.D. La.).
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