You Cannot Be Serious ® - Fordham Intellectual Property, Media & Entertainment Law Journal
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You Cannot Be Serious ®

You Cannot Be Serious ®

(“You Cannot be Serious” is owned by tennis legend John McEnroe.)

Early in the 4th quarter of that really important football game last Sunday, Colin Kaepernick scampered into the end zone to cut the Ravens’ lead down to just two points. The 15 yard touchdown run was not only the longest by a quarterback in important-game history, it also culminated in the pose that the world has come to know as “Kaepernicking” However, what the world may be surprised to know is that “Kaepernicking” may soon become a registered trademark with the United States Patent and Trademark Office. So, you better think twice before you go to kiss your bicep.

The United States Patent and Trademark Office (USPTO) defines a trademark, in relevant part, as “any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller.” Typically, corporations own trademarks and affix the marks to their specific products. This mark is used to identify a specific commercial source as the origin of the product. Misuse of a registered trademark constitutes trademark infringement and opens the infringer up to a whole host of legal consequences.

So, how should we understand the trademarking of a celebration dance in the context of these legal concepts? Well, first of all, “Kaepernicking” is hardly the first time we have seen this happen. Usain Bolt’s “Lightning” pose and Michael Jordan’s “Jumpman”pose are both registered trademarks. The latter, which first appeared on “Air Jordan” sneakers in 1988, has become the mark of an entire arm of Nike products. Additionally, Tim Tebow registered ”Tebowing,” the act of imitating his famous pre-game prayer pose, in 2012. Second of all, the general public, and even other athletes, are allowed to imitate and mimic the poses as long as it’s not for a commercial purpose.

Athletes are motivated to trademark these signature moves for a number of reasons. The first is that they are able to license the trademark to various sponsors and merchandisers. The mark has value because it becomes the logo for a particular athlete. Additionally, as was the alleged motivation of Tim Tebow, athletes can control the use of the mark. So, even if they don’t plan on profiting from the mark, they can make sure that another party does not use the mark improperly. For example, although LSU cornerback Tyrann Mathieu did not own a trademark for his nickname, “The Honey Badger,” LSU issued cease and desist letters in 2011 regarding use of the nickname in conjunction with any “LSU indicia” as it could violate NCAA eligibility rules.

The potential windfall for many of these athletes is minimal and usually takes place within a limited window. With the exception of athletes like Michael Jordan, many of these trademarks are only valuable while they are, as you could say, the mark du jour. The success of “Kaepernicking” will depend entirely on the success of Colin Kaepernick. If he becomes the next Joe Montana, little kids will be “Kaepernicking” for the next 100 years. If he becomes the next Jim Druckenmiller, “Kaepernicking” becomes an obscure trivia question. The uncertainty is the motivation behind trademarking the pose while it is still valuable.

While the trademarking of “Tebowing” and “Kaepernicking” could be seen as unnecessary, the move can be justified in light of the success of the “Jumpman” mark. While Michael Jordan is clearly a once in a lifetime athlete, the reality is that a succinct logo can be extremely valuable for an athlete. But what else can be valuable? Well, that’s a clown question, bro.

In 2012, a Canadian reporter asked 19-year-old Bryce Harper if he planned on enjoying a postgame beer while playing in Toronto. Harper responded with, the now trademarked, ”that’s a clown question, bro.” In January 2010, Darrell Revis of the New York Jets, trademarked the term ”Revis Island,” a nod to the cornerback’s ability to isolate opposing receivers. Former NFL wide receiver Terrell Owens owns the rights to the phrase “I Love Me Some Me,” a nod to him being a self-promoting lunatic, more than anything else.

The uncertainty, both in length and caliber, of a professional athlete’s career can be seen as one of the main motivations behind this movement. Athletes who are able to build a brand and establish recognition off the field are able to extend what could potentially be an extremely short career. “Most of these athletes have a very limited period of time where they have their primary earning years, and this is a way to capitalize on their fame and maximize their earnings during their playing career, “ says Daniel Glazer , editor of the Trademark Journal.

Athletes have wised up in recent years, especially after what happened to Vince Young, occasional NFL player (generous classification) and former University of Texas quarterback. In 2006, Young led the Longhorns to a National Championship. His performance in the game had the sports world abuzz regarding his future as an NFL player. After the game, an entrepreneurial stranger submitted trademark applications for his initials (VY) and nickname (InVINCEable). Young sued for the rights to the trademark claiming that misuse of the trademark could hurt his ability to market himself for sponsorships. According to the New York Times ,, the case was settled and Young has now filed for the rights to those trademarks.

The Vince Young fiasco illustrates the fear many athletes have regarding their image. While there is no doubt financial incentive to own the rights to a trademark, the fear that an iconic trademark, representing a specific athlete, could potentially be marketed by a third party is enough to have the USPTO inundated with “Tebowing” and “Kaepernicking” applications. In some cases, however, athletes are totally fine with a third party owning the rights to their potential trademarks. For example, Nike owns the rights to the name “LeBron.” LeBron James does not own the rights to his own name.

So, while I doubt we will soon see trademark applications for “Bradying”
and “ManningFace,” the emergence of these memes will continue to be an almost daily occurrence. The vast reach of the internet, coupled with the mass production of non-official fan apparel, means that these marks have tremendous value, especially since registering the mark costs only about $300. So, is registering a trademark a smart decision? That’s a clown question.

Catherine Ryan

Catherine Ryan is a second year law student at Fordham University School of Law. Her affinity for crippling debt brought her to law school and she hopes to one day graduate. She spends her days watching sports, napping, and tweeting. During the fall, you can catch her incensing thousands of college football fans over at Uni-Watch.com.