Sports and Branding: Trademarks Become Part of the Play Book

As recent sports news coverage has demonstrated, most notably an article by ESPN on the subject of athletes and trademarks, athletes have learned the rules of branding and are ready to play the game.

With the speed that Jeremy Lin captured the public's imagination with his uncommon rags to riches story where the subject had to overcome the limitations of being a Harvard graduate, LINSANITY became a national phenomenon almost overnight.

As his popularity skyrocketed and his brand went from non-existent to one of the most viable in the NBA, savvy members of the viewing public began to file applications for the LINSANITY mark in connection with goods and services ranging from apparel to business management.

After threats of legal proceedings caused most third parties to settle and get out of the lane, Jeremy Lin has been recognized in various news reports as the exclusive owner of the LINSAINTY trademark.

Mere months later, Anthony Davis, the No. 1 pick of the 2012 NBA draft and the new face of the New Orleans Hornets, sought to preempt any such cherry picking of his trademark rights by the general public and filed for several brow raising trademarks.  Realizing the potential fodder his unique unibrow look may provide for fans and reporters alike, he filed for the following trademarks:  BROW DOWN, FEAR THE BROW, and RAISE THE BROW.

Now that athletes have realized the value of their personal brands, expect such preemptive filings and agressive legal action to become more commonplace, putting a trademark lawyer right there with a sports agent and personal manager as essential components of an athletes entourage.

Brand of Interest: Wes Nyle - "All Bad"

Proud to introduce our Brand of Interest segment to our Blog - An introduction from us to you of a brand affiliated with or watched closely by Brand Ventures IP, be it an artist, a product, a service provider, or even a colorful logo or catchy jingle.  This segment is a lesson in itself of the power, utility and necessity of social media promotion and underscores the changing landscape of self promotion.  Long gone are the days where to establish a recognizable brand such a task required significant financial resources and contributions from outside third parties.

Done strategically and with dedication, with a Facebook page, a Twitter account, some content on YouTube, and most importantly a viable brand, you can create not just the perception of success but you can create success itself.  When buyers, labels, studios, investors in the past had significant leverage in the initial negotiaiton phase based on their need to see proof that a brand could be successful, now you can come to such negotiations with the proof they are looking for.  The potential of a brand to be a successful venture can now be shown, often times for marginal costs, through the demonstration of quantifiable public interest (likes, followers, views, etc.). Some advice for the following Brand of Interest: TURN IT UP!

iPad: Is Apple's Trademark Generic or Just a Valuable Brand?

Apple has always been afforded substantial trademark protection for their various device trademarks that place an "i" in front an otherwise generic word. However, as an attorney who works with the USPTO daily, I have noticed that most other companies are afforded no such protection. On one hand, Apple is extremely capable of proving acquired distinctiveness, which is commonly proven by such factors as marketing budgets and surveys proving consumer awareness and association with a particular company.

Acquired distinctiveness is a status that typically requires a period of five years of sole use that is uninterrupted by third party use of the trademark. As Apple's legal team is surely to use their vast resources to ensure their marks remain solely used by and associated with Apple, it is likely they never have a problem with third party usage. On the other hand, there is a point where you cannot offer such protection to any marks as it becomes so synonymous with a product or service it would be akin to allowing Ford to have exclusive rights to refer to a line of their cars as "stationwagons".

Therein lies the give and take is such determinations, and is the reason that while Apple is likely safe for the time being, there may come a point that putting a mere "i" in front of otherwise generic word will no longer allow Apple to monopolize such wording as PAD, POD, PHONE, etc. It is one of the paradoxes of trademark law and brand protection, that especially those marks that are most recognizable and strong are at the same time the most vulnerable to such challenges based on genericness (see Google and the recent challenge in Federal Court over the genericness of their search engine trademark, and see also TiVo's strict trademark guidelines for an example of intensified policing efforts). These companies use vast resources to ensure they do not suffer the same fate of brands that suffered a complete loss of highly valuable trademarks (see BANDAID and THERMOS for examples).

An article by the LA Times recently published discusses Apple's most recent challenge to one of their most valuable brands, one that is sure to be a highly valuable IP asset for years to come, and even more so as tablets lead the charge as one of the devices looking to replace traditional computers.

Quote of the Day

"The protection of trade-marks is the law's recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants." Justice Felix Frankfurter