Friday, August 3, 2012

Can I Trademark a Sports Star Nickname?

Dear Rich: What about the case where a fan comes up with a nickname for a sports star that is potentially a hot ticket? Can they trademark the nickname to protect potential rights to selling merchandise before the name gets traction? Probably not. As we predicted in a previous entry, applicants for the "Linsanity" trademark were dispatched by Jeremy Lin's lawyers (and they lost their $300+ trademark application fees, as well). The reason: use of the nickname on merchandise deceives consumers (who associate the nickname with the sports star, not the fan). This New York Times article goes into more detail. Even "unique" facial hair can form the basis for a basketball player's protectable trademark. Keep in mind that trademark law, unlike patent and copyright law, doesn't reward creative efforts, it rewards those who create a consumer association with a mark. So thinking up the trademark, or racing to the USPTO to be first to file, won't guarantee you trademark rights. BTW, in addition to trademark rights, you're also probably violating the right of publicity.

1 comment:

Dr. Beta said...

More questions:
What if the nickname has already been bought and sold nationally and the artwork associated with the nickname is copy-written as well as having the nickname trademarked? (Common Law TM'd/© for some time before it caught on - Registered TM in process) I realize that the player most likely owns their likeness (etc), but the person who created a potential $ maker of a nickname for them and got the ball rolling on that side of things would be entitled to nothing? Wouldn't the artwork associated with the nickname itself be protected? (+ derivatives & similar art + merchandise) Would it give more merit to holding the trademark if it has been used in commerce for some time already? Maybe not, but this seems to be very unfair to progenitor of the idea. Seems like a very convoluted subject.