Trademark Law in Professional Wrestling and Streaming Platforms
Intellectual property law is divided into three main components: patents, copyright, and trademarks. Each of these provides the creator of an original concept with a limited monopoly in a commercial context. Recently, the limits of such laws, particularly trademark law, is being tested in the unconventional world of professional wrestling.
World Wrestling Entertainment (WWE) is the biggest wrestling promotion in the world, generating $221.6 million in revenue for the third quarter of 2020 alone.1 WWE is responsible for creating mega-stars such as Hulk Hogan, the Rock, Stone Cold Steve Austin, and more. It is no secret that these characters are distinctly recognizable by their appearance. Similarly, the unique names of these characters probably spark comparable recognition in the eyes of consumers – an average fan would likely be able to identify Hulk Hogan or The Rock simply based on their character names.
Under trademark law, the name and appearance of these characters are treated as intellectual property, and numerous wrestling names receive trademarks, from the established main-eventers to the newly trained rookies.2 For example, the name “John Cena” is trademarked by the WWE, even though that is the real name of the person who plays the character.3 This effectively gives WWE a limited monopoly over the name “John Cena” in a commercial context.
With the explosion of social media and online platforms for streaming like Twitch, many young and unestablished wrestlers have been drawn to streaming websites for extra revenue.4 They usually play video games, vlog, or answer questions from fans on live streams from websites like YouTube and Twitch, which generate revenue.5 Importantly, these wrestlers are (usually unknowingly) using their wrestling names on their streaming platforms, which is generating extra traffic on their streams.6 This has caught WWE’s eye, and particularly its chairman and CEO, Vince McMahon.
In September WWE released a controversial email which severely limits the avenues wrestlers have to supplement their income, including restricting use of streaming platforms to make profit.7 The email states: “Some of you are engaged with outside third parties using your name and likeness in ways that are detrimental to our company… Continued violations will result in fines, suspension, or termination at WWE’s discretion.”8 This has resulted in wrestlers quitting their streaming platforms on Twitch and YouTube, and has generated serious animosity toward the WWE, which has had a tumultuous history of troubling anti-worker policies.9
As outrageous as this may seem on the surface, this practice is conceivably protected by trademark law. Under trademark law, those elements of a character that assist the public in associating the character with a specific origin can receive trademark protection.10 This encompasses things such as character appearances and costumes.11 Furthermore, a character’s name can be a protectable component of trademark law, hence subjecting that name to legal protection (including character names such as Peter Pan, E.T., Roy Rogers, Dick Tracy).12
Under this setting, WWE is entitled to protect its property under the Lanham Act, which forbids direct infringement or infringement that causes consumer confusion.13 Trademark infringement is usually judged under a three prong test: (1) that the plaintiff has a valid and legally protected mark; (2) that it owns the mark; and (3) that the defendant’s use of the market causes a likelihood of confusion.14 However, under these circumstances, there is little need to determine the likelihood of infringement because the trademark is being directly used by the wrestler to generate traffic. Aside from the fact that the WWE owns these trademarks, it is conceivable that the people watching these streams may assume that the streams are sanctioned by WWE, or at least that the streams involve the WWE, which they do not. This potential association with the WWE brand gives the WWE tremendous leverage in the eyes of the law. It also places the wrestlers in a situation where they are presumptively taking WWE’s property without permission and using it for personal gain.
On its face, this certainly seems unfair. WWE is a billion-dollar corporate giant, while many of these wrestlers are young athletes that have modest salaries. However, according to trademark law, the wrestlers do not own their character names, and they are technically using these character names to generate traffic they would otherwise not receive, which directly results in increased income. Ultimately, this brings up serious issues of corporate greed and rigid adherence to a doctrine that creates inequity and unfair business practices. This even caught the attention of former presidential candidate Andrew Yang, who tweeted directly to Vince McMahon, writing “Come on Vince – you’ve already deprived the folks breaking their backs for you… At least let them make a living off their own names. Many of them need it.”15 Considering the notion that any wrestler who defies this corporate policy could face termination, WWE’s grip on its wrestlers could remain iron clad for years to come.
Financials, World Wrestling Ent., Inc., https://corporate.wwe.com/investors/sec-and-other-documents/financials#:~:text=For%20the%20full%20year%2C%20the,share%2C%20in%20the%20prior%20year[https://perma.cc/Q6BU-SPP9](last visited Nov. 21, 2020).↩
See Professional Wrestlers Face Possible Copyright & Trademark Issues, Grimes LLC.,https://www.gandb.com/2019/03/professional-wrestlers-face-possible-copyright-trademark-issues/[https://perma.cc/4FL4-CE6U](last visited Nov. 9, 2020).↩
JOHN CENA, Registration No. 2957043.↩
James Dator, WWE is Exploiting its Wrestlers with its Policy on Twitch and YouTube, SB Nation (Oct. 2, 2020, 1:41 PM), https://www.sbnation.com/wrestling/2020/10/2/21498651/wwe-policy-wrestlers-twitch-youtube [https://perma.cc/2TTS-YFFY].↩
Kishan Prasad, Official WWE Email that Caused a Ruckus Backstage Leaked, SportsKeeda (Oct. 3, 2020, 10:44 AM), https://www.sportskeeda.com/wwe/rumor-official-wwe-email-caused-ruckus-backstage-leaked [https://perma.cc/RG5U-L8GX].↩
Branko Marcetic, From the WWE to the White House: The Anti-Worker History of Trump’s SBA Pick, In These Times (Dec. 21, 2016), https://inthesetimes.com/article/from-the-wwe-to-the-white-house-the-anti-worker-history-of-trumps-sba-pick [https://perma.cc/2ZHC-NAW7].↩
DC Comics, Inc. v. Filmation Assocs., 486 F. Supp. 1273, 1277 (S.D.N.Y. 1980).↩
Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145, 150 (5th Cir. 1985).↩
15 U.S.C. § 1114(1).↩
Trademark Infringement, Cornell L. Sch., https://www.law.cornell.edu/wex/trademark_infringement [https://perma.cc/YH5S-2VMJ] (last visited Nov. 21, 2020).↩
Andrew Yang (@AndrewYang), Twitter (Sep. 4, 2020, 7:30 PM), https://twitter.com/AndrewYang/status/1302072598335979522 [https://perma.cc/7LS2-WUZY].↩