“Tebowing,” “Linsanity,” and the Trademarks of the Modern Athlete - Fordham Intellectual Property, Media & Entertainment Law Journal
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“Tebowing,” “Linsanity,” and the Trademarks of the Modern Athlete

“Tebowing,” “Linsanity,” and the Trademarks of the Modern Athlete

Athletes can be quite iconic figures who subsequently turn their fame and celebrity into financial gain off the field. With endorsements being such an integral part of the livelihood of sports franchises, it is a natural extension that athletes are becoming more aware of their personal brand identity and marketability, with stats such as the “Q score” taking these factors into account. A further extension of this trend can be seen in the types of trademarks athletes are utilizing.

While he has spent the majority of the first half of the 2012-2013 season on the sidelines, Tim Tebow spent the second half of last season leading the Denver Broncos to an improbable and exciting playoff run. Throughout his career, Tebow would strike an iconic pose after scoring, in a public display of religious prayer. This sparked one of the fastest growing, and at times quite hilarious, trend of fans and foes alike posing for pictures of “Tebowing” across this great nation, and occasionally, internationally. When all was said and done, Tebow was an international phenomenon, a hero to the Christian community, and an often inspiring figure in the NFL.

Representatives for Tebow then filed an application to trademark his signature pose. According to the USA Today, Tebow has marked the right to pose, on bended knee, fist on forehead, in a religious display on the field.

While other athletic trademarks have been approved, this one seems to be unique in a few ways.

Tebow has publicly stated that he did not invent the idea of praying on bended knee during an athletic activity. Additionally, he stated the mark was not filed for his financial gain. Tebow merely wants to “make sure it’s used in the right way.” What type of use Tebow wants to preclude might not be clear, but the application does propose that the word “Tebowing” could be connected to the sale of various clothing items.

This is certainly not the first time an athlete has attempted to coin his signature brand, and definitely not the first time for a New York star. Most recently, “Linsanity” took New York by storm, and Jeremy Lin sought to trademark the term, strangely under similar circumstances of an iconic underdog leading a team to a successful season and subsequently being traded out of the market in which he excelled.

Is it possible, however, that the idea of trademarking an act on a football field during the course of the game may be distinctly different from a word of phrase? What could be next?  There are some mixed ideas about exactly how far this type of trademark may or should be extended in both the athletic and religious communities.

Trademarks are, of course, important to protect the goodwill, to prevent the tarnishing of good name, and to prevent likelihood of confusion. While Tebow could potentially have a financial interest in selling “Tebowing” shirts, dolls, etc., the idea of anyone confusing his act with that of a basketball player praying after a game may be a stretch. While it does not seem likely that Tebow would exercise his trademark in that type of scenario, it would be interesting to see how far courts would allow the trademark to extend.

Another innovative player trademark belongs to an Olympic gold medalist and NBA star Anthony Davis, aka “The Unibrow.”
Davis has a “unibrow”. He has made a conscious decision to keep his look to distinguish himself from most athletes that become rich and famous, who attempt to conform to popular notions of beauty.

Trademarking a phrase or a word is relatively common. Trademarking a pose is in another realm. But trademarking a feature that is a naturally occurring part of your body, and specifically one that many others make conscious efforts to avoid, is in an entirely different realm.

It appears as though Davis’ representation knows that having a unibrow alone is not enough to give rise to a trademark. However, given Anthony’s trademarks for brow-related phrases, any merchants that sold “Brow” merchandise were quickly put on notice. It is clear he wants to own any and all rights to exploiting his signature look for financial gain, to protect his image, or otherwise.

Davis is certainly not alone in having a distinct look as an athlete. Athletes like Tim Lincecum (aka “The Freak”) have developed looks and nicknames that distinguish them from other athletes. Curiously though, despite trademark applications for certain unique images, Lincecum does not have any pending applications for his nickname.

We are likely to see some interesting tests of these types of marks with the rapidly changing world of social media and an increased awareness of athletes concerning their brand identity. As athletes become more aware of the need to establish, maintain, and exploit their brand, they are using more innovative ways to succeed in off-the-court business endeavors. Certainly, government-protected and legally enforceable rights to employ financial gain are strong motivators to establish such a brand. Twitter, Facebook, and other social media outlets have only further accelerated the development of such brand awareness. While the road to the professional level of sport can be long and arduous, the path to becoming internet sensation can happen overnight. Indications seem to be, with trademark applications like these being approved, that there is now a legal opportunity to trademark and capitalize on this type of rapid fame and success.

Evan Morse

Evan Morse is a 2L at Fordham Law, who attended Cornell University’s School of Industrial and Labor Relations as an undergraduate. In addition to being a staffer on the IPLJ, he is an avid sports and entertainment law enthusiast. While it may be too late for him to become a professional athlete, he believes it is definitely not too late to negotiate with one.