Flag football is rapidly growing both in the U.S. and globally with 2.4 million U.S. kids participating and millions more internationally.[1] It is expected to surpass tackle football in organized participation worldwide, supported by initiatives from the National Football League (NFL) and the International Federation of American Football (IFAF).The sport gained international recognition with its inclusion in the 2022 World Games and will be included at the Los Angeles 2028 Olympics.[2] Due to its accessibility and inclusivity, flag football is a cornerstone of the NFL’s domestic and international development strategies.
As the NFL invests in flag football, it faces legal challenges over brand identity in this rapidly growing sport. Two parties are fighting over the “USA FLAG” mark: USA Football, a nonprofit “endowed by the NFL and the NFL Players Association,” and FFWCT, LLC, with its affiliate USA Flag, LLC, both organizing similar flag football events.[3] The dispute arose from a series of failed business negotiations and a subsequent fight over trademark rights.
Background
In 2017, USA Football and FFWCT began exploring a joint venture under the name USA Flag, aiming to create a governing body for flag football. USA Football declined the proposal, but entered into agreements for consulting services with FFWCT through 2018. However, by 2020, after the expiration of their agreement, FFWCT filed for the USA FLAG trademark. USA Football opposed FFWCT’s trademark applications, arguing that it would likely cause consumer confusion due to its similarity with their USA FOOTBALL mark. The TTAB initially sustained the opposition.
As the court described this as “a Hail Mary attempt to salvage the relationship,” USA Football and FFWCT then entered into a final agreement in March 2021 which allowed USA Football to scout at FFWCT events.[4] FFWCT agreed to stop using USA FLAG branding until February 2022. After that agreement expired, FFWCT refiled for the USA FLAG trademark in April 2022. In September 2022, FFWCT announced its full rebrand to USA FLAG, prompting USA Football to send a cease-and-desist letter, which FFWCT ignored.
This disagreement escalated into litigation, with USA Football accusing FFWCT of infringing upon its intellectual property. FFWCT, on the other hand, defended its position by arguing that flag football and tackle football were distinct entities. In its view, USA Football’s trademarks were primarily associated with tackle football, not the flag football format that FFWCT was promoting.
Trademark Infringement
As USA Football’s marks are incontestable, the core issue is the alleged trademark infringement by FFWCT’s newly registered mark.[5] Specifically, the court considered whether FFWCT’s use of the USA FLAG mark would likely cause confusion among consumers. Since likelihood of confusion is a question of fact, the court concluded that the issue should be put to a jury.
Trademark infringement cases hinge on likelihood of confusion. The court evaluates key factors, or “digits of confusion” in the Fifth Circuit.[6] The factors in this case they likely favor USA Football are listed as follows:
- Strength of the plaintiff’s mark: USA Football’s marks are incontestable and thus have a presumption of validity. It is also likely strong given their association with the NFL, a household name in American sports. The long-standing reputation of the NFL contributes to the mark’s widespread recognition which elevates the risk of consumer confusion.
- Similarity of the marks: “USA FLAG” and “USA Football” both feature “USA” and “F” as the second letter. This similarity is concerning because “USA” conveys an association with national-level football, and both marks are related to football in some capacity potentially creating confusion that they may originate from the same entity.
- Similarity of products/services: USA Football and FFWCT offer overlapping services in the football arena. USA Football operates in both traditional and flag football, while FFWCT focuses solely on flag football. Despite FFWCT’s claim of dissimilarity, its application’s services description is “virtually identical” to USA Football’s registration, differing only by the addition of “flag” in front of football activities.[7]
- Identity of retail outlets and purchasers: Both entitles also target similar consumer groups —athletes, event organizers, and football enthusiasts—thus, directing a similar consumer demographic. This overlap strengthens the argument that consumers may mistake one entity for the other, especially if they are unfamiliar with the distinctions between “football” and “flag football.”
- Similarity of design: While the specific design elements of the marks were not discussed in depth, the overall similarity in naming and market association suggests that the marks may share visual elements (e.g., red, white, and blue, football logos, stars, and stripes) that could contribute to confusion.
- The defendant’s intent: USA Football may assert that FFWCT acted in bad faith by continuing to use the “USA FLAG” mark despite their opposition. Licensing can also impact this factor by indicating whether FFWCT knowingly took advantage of USA Football’s established brand recognition to benefit from their reputation which could strengthen the likelihood of confusion. However, if USA Football knew of FFWCT’s use and took no action, it could suggest acquiescence. The licensing agreement could clarify if USA Football was aware of USA FLAG in the marketplace, consented to its use, or knew of FFWCT’s lawful rights but proceeded with the lawsuit anyway. Licensing could either justify FFWCT’s actions or intensify suspicions of intentional infringement.
- Actual confusion: Evidence of consumer confusion, such as testimonials or consumer surveys, would weigh heavily in USA Football’s favor especially if they are the senior, stronger mark.
- Degree of care exercised by potential purchasers: Since flag football appeals to casual participants, consumer scrutiny may be low. As this is a new and growing sport consumers may be less familiar with the details of different organizations, which would strengthen USA Football’s case.
Potential Defenses
In defense, FFWCT argued that the terms “football” and “flag football” referred to distinct activities, and thus USA Football’s trademarks should not apply to flag football events. However, the court rejected this argument stating “[t]rademark protection is not limited to the goods and services specified in the registration but extends to any goods or services which are likely to cause confusion in the market.”[8] Although the court isn’t required to base its analysis on linguistic interpretation, it finds FFWCT’s position “a non-starter.”[9] They noted that “football” reasonably includes “flag football” as a sub-category. The Olympics themselves have also identified Flag football as “a variant of American football (or gridiron)[.]”[10]
FFWCT’s strongest defense is challenging the distinctiveness of USA Football’s marks, but this fails at summary judgment.[11] Instead, FFWCT’s challenge should be addressed within the likelihood of confusion analysis, focusing on the strength of plaintiff’s mark.
When terms like “AMERICA” or “USA” appear in trademarks, their geographic significance is assessed on a case-by-case basis considering the goods or services, geographic origin, and the overall commercial impression. If the term primarily denotes U.S. origin, it could be deemed geographically descriptive.[12] As a result, other similarities—such as logos or colors associated with the American flag—may not be particularly distinctive.
Regarding the similarity of the marks, both “USA FLAG” and “USA Football” share “USA” and relate to football. However, “USA” is a geographically descriptive term, weakening its ability to uniquely identify the brand and reducing the likelihood of confusion. The more prominent words—”Flag” and “Football”—would then distinguish the marks. “Flag” refers specifically to flag football, a distinct form of the sport. However, both parties disclaimed terms like “FLAG” and “FOOTBALL” in their registration, acknowledging that these words are not inherently distinctive or unique identifiers.[13] This further emphasizes the weakness of the marks and unlikeliness of creating confusion.
FFWCT could argue prior use of the “USA FLAG” mark, asserting that it adopted and used the mark in commerce before USA Football’s expansion into flag football. FFWCT claims first use since 2010.[14] As a result, FFWCT may raise equitable defenses like acquiescence or laches. Pointing to the licensing agreement between the parties could suggest that USA Football was aware of FFWCT’s use and allowed it without objection for a significant period. If USA Football failed to enforce its trademark rights or implicitly permitted FFWCT to use the mark, FFWCT could argue that USA Football waived its rights.
Another defense is that consumers in the sports industry could be highly sophisticated, and this heightened discernment makes it less likely they would be confused. As the NFL notes, flag football is becoming more international and gaining Olympic recognition. While the NFL is cleverly expanding its reach, it’s possible that FFWCT has established itself as a distinct brand with its own targeted audience. Consumers would then be more likely to distinguish between tackle and flag football leagues based on specific branding, marketing materials, and their activity preferences.
Court’s Ruling on Summary Judgment
The court ruled in favor of USA Football on the validity of its trademark. It acknowledged that USA Football had established strong marks, which was an important victory in the case. However, on the central issues of likelihood of confusion, vicarious liability, and conversion, the court found that factual disputes remained unresolved. As a result, it denied summary judgment on these issues, leaving the ultimate decision to the jury. In this battle for the future of flag football, the only thing that’s clear is that both sides are aiming for a touchdown in court.
Katelyn Kohler is a third-year law student at Suffolk University in Boston, specializing in Sports & Entertainment, Intellectual Property, and Labor & Employment Law. She holds dual degrees from Ithaca College in Business Administration: Sports Management and Legal Studies.
[1] See National Football League, Flag Football Growth, NFL OPERATIONS, https://operations.nfl.com/learn-the-game/flag-football/flag-football-growth/ (last visited Feb. 23, 2025).
[2] See NFL and Jalen Hurts Light Up Handover to Olympic Games Los Angeles 2028, NFL (Aug. 5, 2024), https://www.nfl.com/partners/flag-football/.
[3] See FFWCT, LLC v. USA Football, Inc., No. 4:23-cv-465, 2025 U.S. Dist. LEXIS 644, at *27 (E.D. Tex. Jan. 3, 2025).
[4] See id. at *9.
[5] See id. at *24-26 (explain USA Football’s incontestable status). Incontestable status removes the ability to challenge a mark’s validity, which applies after five years of registration and use in commerce. See id. If a mark achieves incontestable status, its federal registration serves as conclusive evidence of validity. See id. (citing 15 U.S.C. § 1065).
[6] See id. at *29 (describing factors in Fifth Circuit).
[7] See id. at *7; see also USA Football, Registration No. 5,172,678; USA Flag, Application No. 88880085.
[8] See FFWCT, LLC v. USA Football, Inc., No. 4:23-cv-465, 2025 U.S. Dist. LEXIS 644, at *27 (E.D. Tex. Jan. 3, 2025)(citing Source, Inc. v. SourceOne, Inc., No. CIV.A.3:05-CV-1414-G, 2006 U.S. Dist. LEXIS 62401, 2006 WL 2381594, at *4 (N.D. Tex. Aug. 16, 2006)).
[9] See id. at *28.
[10] See International Olympic Committee, Flag Football, OLYMPICS, https://www.olympics.com/en/sports/flag-football/ (last visited Feb. 23, 2025).
[11] See id. at *24 (“Flag’s challenge to the distinctiveness of the USA Football Marks falls flat because that argument is better handled under the likelihood of confusion analysis.”).
[12] See TMEP § 1210.02(b)(iv).
[13] See USA Football, Registration No. 5,172,678; USA Flag, Registration No. 7,290,036 (noting disclaimers).
[14] See USA Flag, Registration No. 7,290,036 (stating date of first use).
