A trademark assignment made after litigation begins may look suspiciously like someone changing jerseys after the game has started. In Game Plan, Inc. v. Uninterrupted IP, LLC, however, the U.S. Court of Appeals for the Federal Circuit confirmed that timing alone does not invalidate a transfer of trademark rights.
The court affirmed the cancellation of Game Plan, Inc.’s registration for its stylized I AM MORE THAN AN ATHLETE. GP GAME PLAN mark. Uninterrupted IP, LLC, often referred to in the case as UNIP, established priority through common law trademark rights it acquired during the underlying Trademark Trial and Appeal Board proceeding.
The decision matters well beyond sports branding. It explains how common law trademark rights can be transferred, why goodwill must travel with a mark, when restrictions on intent-to-use applications apply, and how a procedural mistake at the TTAB can turn a promising argument into a very expensive paperweight.
The Federal Circuit issued its precedential decision on December 10, 2025. After rehearing was denied, Game Plan petitioned the U.S. Supreme Court for review. The Supreme Court denied the petition on June 22, 2026, leaving the Federal Circuit’s judgment in place. A denial of certiorari is not an endorsement of every sentence in the lower court’s opinion, but it means the decision remains controlling Federal Circuit precedent.
How the “More Than an Athlete” Trademark Dispute Began
Game Plan is a nonprofit organization that works with student-athletes in underserved communities. It obtained a federal registration in June 2018 for a stylized mark containing the phrase I AM MORE THAN AN ATHLETE. The registration covered charitable fundraising services conducted through the sale of T-shirts supporting educational and entertainment programs.
Uninterrupted, a sports media and branding company associated with professional athletes, had filed six intent-to-use trademark applications in March 2018. Those applications covered versions of I AM MORE THAN AN ATHLETE and MORE THAN AN ATHLETE for clothing and sports-related entertainment services, including online videos, podcasts, films, and social media content.
In November 2018, Game Plan opposed those applications before the TTAB. It alleged that Uninterrupted’s marks were likely to cause confusion with Game Plan’s registered and asserted common law marks.
Then the litigation plot acquired a rather important sequel.
Uninterrupted Acquired Earlier Common Law Rights
On February 22, 2019, after Game Plan had filed its opposition, Uninterrupted entered into an asset purchase agreement with DeAndra Alex and her company, More Than an Athlete, Inc. The sellers had used the MORE THAN AN ATHLETE mark since at least 2012 in connection with clothing and community events.
The agreement transferred the trademark and the goodwill associated with the relevant business. Uninterrupted also retained Alex as a consultant. It then relied on the acquired common law rights in a counterclaim seeking cancellation of Game Plan’s registration.
The maneuver was strategically powerful. If the assignment was valid, Uninterrupted could rely on the assignor’s earlier use rather than only on its own 2018 application dates. Trademark priority is often a race in which an assignee may step into the assignor’s shoesprovided those shoes come with the actual business reputation that made consumers recognize them.
Why the TTAB Canceled Game Plan’s Registration
The TTAB dismissed Game Plan’s opposition and granted Uninterrupted’s counterclaim. Because the parties effectively conceded that the marks created a likelihood of confusion, priority became the decisive issue.
The Board concluded that Uninterrupted had acquired valid common law trademark rights that predated Game Plan’s constructive priority date. It found that the transfer was not an invalid assignment in gross because the trademark, associated goodwill, and a continuing business connection moved together.
The Board also found that Uninterrupted’s use was substantially similar to the assignor’s use. Both businesses used the phrase in connection with T-shirts or related clothing as part of a broader message about the lives and well-being of athletes. Retaining the prior owner as a consultant provided additional evidence of continuity.
Meanwhile, Game Plan encountered a separate and ultimately devastating problem: it did not properly introduce its supporting evidence during the TTAB trial period.
Game Plan referred to documents previously submitted with motions and other filings. But evidence attached to a pleading or summary judgment motion does not automatically become trial evidence. With limited exceptions, it must be introduced through an authorized method, such as a notice of reliance or witness testimony. The TTAB therefore declined to consider materials that had never been properly placed in the trial record.
In legal proceedings, “the document exists somewhere in the electronic docket” and “the document is admissible trial evidence” are not twins. At best, they are distant cousins who exchange holiday cards.
The Federal Circuit’s Analysis of the Trademark Assignment
On appeal, Game Plan challenged the validity and timing of the assignment. The Federal Circuit rejected those arguments and affirmed the TTAB.
1. The Assignment Transferred Goodwill
Under Section 10 of the Lanham Act, a registered mark or a mark covered by an application generally must be assigned with the goodwill of the business in which the mark is used. A trademark is not merely an attractive word, phrase, or logo. It represents the reputation and consumer expectations connected to particular goods or services.
An assignment in gross occurs when a mark is transferred without its associated goodwill. Such a transfer may be invalid because consumers could encounter the same mark attached to a materially disconnected business or source. Trademark law is designed to protect source identification, not to support the trading of brand names as though they were unused vanity license plates.
The 2019 agreement expressly transferred the relevant trademarks together with the goodwill of the associated business. That language was important, but the court did not rely on contractual phrasing alone.
The surrounding facts also showed continuity. The assignor and assignee used the mark for similar clothing, addressed a similar audience, promoted a related athlete-centered purpose, and maintained a relationship through the consulting arrangement. Substantial evidence therefore supported the conclusion that the trademark’s goodwill had not been severed from the mark.
2. The Mid-Litigation Timing Did Not Invalidate the Deal
Game Plan emphasized that Uninterrupted acquired the common law rights after the opposition had begun. The court agreed with the TTAB that the motive or timing of a transfer is not automatically dispositive.
A party may acquire senior trademark rights in anticipation of litigation or while litigation is pending. What matters is whether the seller owned valid rights and whether the transaction transferred those rights with the associated goodwill.
This does not mean any litigant can purchase a dusty mark from an inactive business and instantly manufacture priority. The acquired mark must still possess enforceable rights. Evidence of abandonment, token use, discontinuity, or a transfer divorced from the relevant business may defeat the assignment.
The decision therefore approves genuine assignments during litigation, not legal time machines assembled from a trademark certificate and optimistic drafting.
3. The Intent-to-Use Restriction Did Not Apply
Game Plan also relied on the Lanham Act’s restriction against assigning an intent-to-use application before the applicant files an amendment to allege use or a verified statement of use, unless the transfer is made to a successor to the applicant’s ongoing and existing business.
That restriction prevents trafficking in applications based only on an unfulfilled intention to use a mark. An applicant should not be able to reserve a collection of desirable names and sell the applications like digital trading cards before building any associated business.
The Federal Circuit found that Game Plan’s argument confused two different assets. Uninterrupted did not transfer its six pending intent-to-use applications to another entity. Instead, it received an assignment of preexisting common law rights in a mark that had already been used in commerce.
Because the transaction involved existing common law rights rather than the prohibited transfer of Uninterrupted’s intent-to-use applications, the statutory restriction did not invalidate the assignment.
4. Acquiring Common Law Rights Was Not an Application Amendment
Game Plan next argued that the acquisition effectively amended Uninterrupted’s applications during the opposition without the consent or approval required by 37 C.F.R. § 2.133(a).
The court rejected that theory as well. The TTAB did not award priority based on a substantive amendment to the applications. It relied on independently acquired common law rights that predated Game Plan’s relevant priority date.
The rule governing amendments to applications and registrations during TTAB proceedings did not prohibit a party from independently acquiring existing common law trademark rights.
5. The TTAB Properly Excluded Unsubmitted Evidence
The Federal Circuit also upheld the Board’s refusal to consider Game Plan’s excluded materials. TTAB proceedings have specific rules governing the introduction of evidence. Parties generally must use notices of reliance, testimony declarations, depositions, or other authorized procedures during the designated trial periods.
Materials used earlier in motion practice do not necessarily migrate into the final trial record through the power of positive thinking. Because Game Plan failed to introduce the disputed documents correctly, the Board acted within its discretion by declining to consider them.
What the Decision Means for Trademark Priority
The decision confirms that common law trademark rights can be valuable transferable assets. Federal registration provides important nationwide procedural and substantive benefits, but trademark ownership in the United States can arise through actual use even without a registration.
When valid common law rights are assigned with their goodwill, the assignee may generally rely on the assignor’s priority. The assignee receives no greater rights than the assignor possessed, however. The geographic reach, goods, services, continuity, and strength of the transferred rights still depend on the historical facts.
A seller that used a mark only for apparel in a limited region may not hand the buyer nationwide priority for unrelated financial, medical, or software services. Trademark rights are not pizza dough; they do not expand merely because someone stretches them enthusiastically.
The ruling also shows that priority can change during litigation. Counsel evaluating a dispute must investigate not only the parties’ current registrations and applications but also acquisitions, predecessors, license arrangements, business transitions, and historical common law use.
How to Structure a Strong Trademark Assignment
Identify Every Relevant Asset
The agreement should clearly identify the marks, applications, registrations, common law rights, trade names, domain names, social media accounts, packaging, promotional materials, and other brand assets included in the transaction. Unregistered variations and related slogans should not be forgotten merely because they lack tidy registration numbers.
Expressly Transfer Associated Goodwill
The assignment should state that the goodwill associated with the marks and relevant business is being transferred. This language is not decorative parsley. It helps demonstrate that the buyer is acquiring a functioning source-identifying asset rather than a word detached from its commercial meaning.
Preserve Commercial Continuity
Deal teams should document how the buyer will continue the relevant goods, services, standards, audience, or brand mission. Transitional consulting, transfer of customer information, continued product lines, inventory, manufacturing knowledge, and marketing assets can help establish continuity.
Investigate Abandonment and Prior Use
Before relying on an acquired priority date, the buyer should verify the assignor’s actual use. Useful evidence may include dated packaging, invoices, advertisements, archived webpages, event materials, photographs, customer communications, sales records, and testimony from knowledgeable witnesses.
A beautiful assignment agreement cannot revive rights that the seller abandoned years earlier. Contract language documents a transaction; it does not manufacture historical use.
Record the Assignment Promptly
Assignments involving federal applications or registrations should be recorded with the USPTO promptly. Timely recordation helps protect the assignee against certain subsequent purchasers and keeps ownership records accurate.
Recordation, however, is not a government warranty that the underlying transaction is legally valid. The USPTO’s record is a public notice system, not a legal defibrillator for defective transfers.
Lessons for TTAB Litigants
The evidentiary portion of the decision may be even more immediately useful than the assignment analysis. A party can possess persuasive documents and still lose if those documents never become part of the trial record.
TTAB litigants should maintain a separate trial-evidence plan rather than treating the docket as one large evidentiary soup. Before the testimony period closes, counsel should confirm:
- Which documents are automatically of record;
- Which materials require a notice of reliance;
- Which facts require testimony or authentication;
- Whether discovery responses are being introduced through the proper rule;
- Whether prior motion exhibits must be resubmitted; and
- Whether objections and evidentiary foundations have been preserved.
An appeal generally reviews the record that was created below. It is rarely an opportunity to unpack a forgotten box of evidence and announce, “Good news, everyonewe had proof all along.”
Practical Experience and Final Takeaways
Real-world trademark transactions often fail in the gap between what the contract says and what the business actually does. Imagine a startup buying a small apparel brand. Its agreement assigns the name, logo, registration, and “all associated goodwill,” using language copied from a respectable form. The buyer then closes the seller’s store, discards the designs, changes the product category, replaces the audience, and launches an unrelated financial app under the acquired name. The contract mentions goodwill, but the commercial reality looks like a mark separated from the business that created its reputation. That is precisely the kind of disconnect that invites an assignment-in-gross challenge.
Now consider a better-planned acquisition. The buyer receives the apparel inventory, design files, website, domain name, customer list, social accounts, advertising archives, vendor relationships, and historical sales records. The founder remains available during a transition period, while the buyer continues selling substantially similar goods to the same community. In that situation, both the documents and the post-closing conduct support continuity of goodwill. The transaction tells one consistent story instead of presenting a contract that says “continuity” while the business shouts “complete reinvention.”
A second recurring experience arises in litigation. A business may have years of invoices, screenshots, event photographs, product labels, and social media posts showing early use. During discovery, those materials are exchanged, attached to motions, and discussed repeatedly. The team begins to think of them as unquestionably “in the case.” When trial begins, however, no one prepares the required notices of reliance or testimony. The evidence remains visible in the docket but unusable for the final decision. The Game Plan dispute demonstrates why litigation teams need a formal evidence map listing every fact, every supporting exhibit, and the procedural method that will place each item into the trial record.
The case also changes how parties should evaluate settlement leverage. A registrant may appear to hold the stronger position until its opponent identifies an earlier common law user willing to assign valid rights. That possibility should be examined early. Searches should extend beyond federal records to archived websites, state databases, marketplace listings, industry publications, event programs, and regional commerce. The oldest registration is not always the oldest enforceable right.
At the same time, purchasing rights during litigation is not a guaranteed shortcut. Counsel must investigate whether the seller continuously used the mark, what goods or services were covered, where the reputation existed, whether licenses were properly controlled, and whether the transferred business remains recognizable after closing. The buyer acquires the seller’s actual legal position, including its weak spotsnot the heroic version described in the acquisition announcement.
The lasting lesson is straightforward: trademark priority is built from use, goodwill, continuity, documentation, and procedure. Uninterrupted prevailed because the transaction transferred more than a phrase, the evidence supported continued commercial meaning, and the rights predated Game Plan’s position. The Federal Circuit’s decision confirms that a properly structured assignment can reshape a trademark dispute even after litigation begins. It also confirms that good facts must be paired with good procedure. In trademark law, owning the right answer is useful; getting that answer properly into the record is essential.
