Dale Earnhardt Jr. versus Lamar Jackson: Trademark attorney explains dispute

Thursday evening, news broke that Lamar Jackson’s legal team had filed a Notice of Opposition to a Dale Earnhardt Jr. trademark. More specifically, it had to do with the number “8” (eight). So, what is going on between the NFL star and the NASCAR Hall of Famer?

Josh Gerben, Esq. of the Gerben Law Firm picked up on the trademark dispute first. Gerben Law contacted 5GOATs/On3 regarding the legal issue. From there, NASCAR and NFL fans alike have been going wild online, trying to figure out what is happening.

So, let’s go over what is going on between these two parties, what is actually being disputed, and more. Gerben also spoke to 5GOATs to clarify these details.

Lamar Jackson vs. Dale Earnhardt Jr. – What to Know

First of all, this is not about the old Dale Earnhardt Inc. No. 8 font. Dale Earnhardt Jr. and Kelly Earnhardt Miller were able to secure the trademark after Teresa Earnhardt let her trademark expire last summer. This is a dispute regarding a different No. 8 trademark.

The trademark for the “8” font that Sammy Smith had in 2024 is being disputed. But not because of the font. The trademark dispute is purely over the rights to market the number “8,” according to Josh Gerben, Esq.

“So he [Dale Jr.] could have put this in any font. It wouldn’t have mattered. So, that has nothing to do with it. It is about the number … If you think about how trademark law works, typically, you get, you know, the owner of a brand. You know? Some people say, well, how can you trademark something like the number eight?

“Well, actually, you could in theory because if you think about it, like, Apple got a trademark we’re talking about the iPhone maker and the computer maker. Apple got a trademark on the word ‘Apple’ as it relates to computers. Right? As it specifically relates.”

Essentially, Lamar Jackson will have to argue that Dale Jr.’s trademark is violating his as it specifically relates to the industry in which the trademark is being used. Can his legal team argue that these NFL and NASCAR trademarks are in the same category?

“When it comes to trademark protection, you’re only getting rights on the trademark as it relates to the brand of goods or services you’re offering,” Gerben said. “So, what this case is about is about Lamar Jackson saying, ‘Hey. I own a trademark to Era eight for a brand of clothing, a brand of bag, and you’re coming in and you wanna trademark eight for a brand of clothing. Well, that’s too similar to my trademark for my brand.’ And so that’s all this is about.”

Many times, NASCAR teams put the NASCAR logo on their merchandise. With that included on shirts, coozies, and diecasts – can there be any confusion with the NFL QB?

Jackson argues his brand can be hurt by Dale Jr.

In the filing, Lamar Jackson’s team makes multiple claims for why the No. 8 shouldn’t be trademarked for Dale Earnhardt Jr. and his group. There are a few…interesting statements.

In the filing, there are more claims made by Jackson’s side. Gerben summarized those points.
– He is widely associated with the number 8 due to his prominence in the NFL and the branding of his merchandise.
– Earnhardt Jr.’s registration could falsely imply a connection between the two athletes and infringe on his established rights.
– Purchasers and prospective purchasers are likely to mistakenly believe that the products Earnhardt Jr. offers are related to the products and services provided by Jackson.

What does Gerben think of the argument? While he gets where Lamar’s team is coming from, it doesn’t feel like it holds up. Lamar is also in a legal dispute with Troy Aikman over a similar trademark issue. That case has gone all the way to discovery, with sides also having settlement discussions.

Would anyone confuse Lamar for Aikman or Lamar for Earnhardt/JR Motorsports? Gerben isn’t so sure.

“I mean, that goes even a step further to credit Dale Earnhardt’s case here is that, you know, the sports are so different, that it’s even less likely there’d be any kind of confusion. Even at the end of the day, I mean, you know, as we all know, you’re a sports fan.

“Like, I’m not buying a Lamar Jackson thing if I’m looking for something that Troy Aikman’s making. You know what I mean? Like, it’s still very different. You know, if I’m a Dallas Cowboys fan or I’m not a Dallas Cowboys fan, those are two very different groups of people.”

Chances of success, potential fallout from trademark dispute

As an attorney specializing in trademark law, Josh Gerben gave invaluable insight into this situation. So, from an expert opinion, where is this case going to go?

“In all reality, when you go to make that purchase, it’s gonna probably be pretty clear whose merchandise you’re buying based on the [imagery],” Gerben said. “So, that’s where this case will likely settle. Basically, probably in a settlement agreement, they would likely talk about how Dale Earnhardt’s use of eight might always have to be in that specific font. Might always have to include some reference to, you know, or imagery around his racing car or his own face.

“And how is this gonna look in the marketplace so that they are distinguishable? You know? So that would be probably what these cases settle on, is something like that.”

But would it stop Kyle Busch from selling his merch? What about other motorsports or stick and ball athletes?

“You know, if for some reason Lamar was successful, it wouldn’t stop people from using numbers on the field or on cars. That’s not what this case is about. … The merchandise [is]. Specifically, it uses other types of NASCAR imagery with the merchandise.

“Lamar Jackson is not going to win a trademark infringement lawsuit because Dale Earnhardt Junior is offering that merchandise. … I don’t think that there is a high level of significance in the sense that all of a sudden you’re gonna see athletes being able to own a number and nobody else across sports use it. Like, that that is never going to happen. I would feel very confident saying that’s never going to happen from something like this.”

With how far Lamar Jackson and Troy Aikman have gone in their dispute, don’t hold your breath. This could drag out until 2026 if the two sides can’t come to a settlement prior.