All Around Bad Night: Kevin Durant Loses Finals, Sued for “Durantula” Nickname

Last night, in Game 5 of the NBA Finals, LeBron James and the Miami Heat delivered on their promise to bring home a championship by closing out the Oklahoma City Thunder, 121-106, in Game 5. LeBron was brilliant throughout the regular season, playoffs and especially the finals. In Game 5, LeBron registered a triple double, with 26 points, 13 assists and 11 rebounds, clearly cementing himself as the best player in the world and perhaps, one of the greatest players in the history of basketball.

While last night was a coronation for “King James”, it was an all around bad night for Kevin Durant. Durant, a 3-time scoring champ, led his team with 32 points, but also had 7 turnovers that contributed to Miami’s romp of OKC. While Durant may not affect the game in as many ways as LeBron, he is 23 years old, a deadly scorer and will only get better. I suspect we may see these two superstars square off in the finals several times within the next few years.

Unfortunately for Durant, his heartbreaking loss in Game 5 was not the only bad news that he received. Rock guitarist, Mark Durante is suing Kevin Durant and Nike for the use of the nickname “Durantula” in shoe marketing campaigns. Durante says he trademarked the nickname in the early 90s and that Kevin Durant and Nike’s use of the nickname has infringed upon his rights.

The success of Durante’s trademark suit will likely depend on whether the US courts find that there is confusion over the use of the nickname.

In Canada, s.6 of the Trademarks Act describes when a mark would be considered confusing with another mark. Generally, in order for there to be confusion, the courts would look at:
• the inherent distinctiveness of the trademarks and the extent that they have become known;
• the length of time that the trademarks have been in use;
• the nature of the wares, service or business;
• the nature of the trade; and
• the degree of resemblance between the trademarks.

In this case, Durant and Durante are in separate lines of business with little overlap and it is unclear how well known Durante’s use of the nickname has been. However, Durante does have evidence to suggest he’s been using the exact same nickname since the early 90s. All factors would be considered to make a determination of whether Durant’s use of the nickname was confusing.

We will continue to follow this suit as it progresses. One thing is certain, Kevin Durant has seen better days and, like LeBron, will likely use these challenges to propel him to the next level in his professional career.

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