Wednesday, October 24, 2012

The TEBOWING TM: Press Fumbles With Trademark Law

Intellectual Property Law is a complicated area of law, yet high profile copyright, patent, and trademark cases have caught the public's imagination and intellectual property law is now a niche topic in mainstream news reporting.

The recent Samsung v. Apple patent dispute (one of seemingly hundreds of domestic and international disputes between the two stalwarts of all things tech), for all of the complexities of a mobile phone patent dispute, was widely reported by national newspapers and magazines, less for the implications of the decision on future mobile technology patent disputes, but more likely because the public is fascinated by, and many involved with, the battle for mobile phone and tablet supremacy between the two tech giants.

Trademark law, the benchmark intellectual property right in brand development and protection efforts, has increasingly been the focus of mainstream news reporting.  What these reports have mostly demonstrated to those with a background in intellectual property law is that trademarks have proven as misunderstood as they have proved fascinating to reporters and the public alike.

For each trademark application and dispute that receives the attention of the mainstream media, there are often instances of inaccurate reporting on the implications of and the law behind the story being reported.  This increase in reporting has led many to believe they have an understanding of legal issues that many legal practitioners themselves have trouble sometimes fully comprehending.   

No recent news reporting has more clearly demonstrated this pervasive absence of accurate reporting than the widely covered filing of the TEBOWING trademarks by Tim Tebow.  Through these reports, the public has been led to believe, sometimes through inflammatory claims, that the enigmatic football player owns the right to kneeling into a prayer stance in the manner his fans and foes have labeled TEBOWING.

I knew there was a problem recently when a Twitter search of TEBOWING mostly produced warnings to the public about the possible legal implications for those who continued to do the kneeling prayer stance now that Tim Tebow had secured rights in the TEBOWING trademark.  This public fear was in most cases the byproduct of warnings present on sports news sites, social media platforms, and even in nationally reputable news outlets that because Tebow has secured rights in the TEBOWING trademark, the public need be cautious when mimicking the famous TEBOWING prayer celebration.  Those with even a basic understanding of U.S. trademark law should immediately be wary of these reports, as they plainly overshadow the purpose of trademark law and the limitations on what protection is offered to the owners of United States trademark rights.

First, after a cursory review of the seven TEBOWING trademark applications on the USPTO, it is apparent that Tim Tebow is the owner of the TEBOWING wording as used in connection with the promotion, offering and sale of various goods and services.  These trademark rights do not reference nor ultimately protect Tebow's prayer celebration known as TEBOWING, and it would be counter to trademark law for the United States government to offer protection to such a public act of celebration particularly when not used in connection with any goods or services, but rather in connection with a live celebration within the context of a football game.

Here are several points to take away from the reporting on the TEBOWING trademark applications:
  • If the celebratory prayer were to be offered intellectual property protection, it would most likely be, although probably a stretch still, in the form of pantomime copyright protection, the form of protection offered to detailed choreography dance routines.  
  • Another possibility would be a design logo trademark application that reflected Tim Tebow in his popular kneeling prayer stance, but even then, it would have to be in connection with a specific offering and sale of goods or services, and would not entitle the trademark owner to prevent members of the public from doing an identical or nearly identical celebration in the context of a football game or some other form of public display. 
  • The reporting by numerous news outlets leads to false reporting and thus an inaccurate understanding by the public as to what a trademark is, what it protects, and what it entitles the owner to protection for and what it prevents the public from doing.  This misunderstanding can undermine the very point of the trademark registration system, as reputable news agencies have now themselves led the public to believe, and even fear, they could be liable for copying the popular prayer celebration known as TEBOWING.  
  • Fortunately, as Tebow is relegated to the bench at present, and can't seem to throw a touchdown pass more than 5 yards away, the world of football has been deprived of the TEBOWING celebration for quite some time, something that may be more common on T-shirts than on the football field for the foreseeable future.  
As intellectual property has become more popular in both practice and in the public's discussion of legal issues, it is important that practitioners do their best to offer explanations of these legal topics in ways that sufficiently explain the nuances of the various types of intellectual property rights but also educate the news agencies and members of the public as to the importance of responsible reporting.  Intellectual property rights are only as valuable as the protection they offer and the credibility they have with members of the public, something that can be undermined by such instances of inaccurate reporting. 

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