'I Said That. Pay Me!' Why Athletes Are Trademarking Names, Catchphrases
Between patent trolls and pop stars protecting their lyrics, it should be no surprise that athletes are aggressively trademarking their nicknames and catchphrases.
Jameis Winston filed to trademark Famous Jameis last week. Marshawn Lynch trademarked BEASTMODE, "I'm all about that action boss," and "I'm just here so I don't get fined." "Johnny Football" and "RGIII" are protected marks.
From the NFL to college, football players are filing trademarks in an effort to protect their likenesses and keep others from cashing in. So what are trademarks, and why and how are athletes using them to protect and profit from their surnames, styles, and sound bites?
Making a Mark
Put simply, a trademark is a name, symbol, word, or phrase used in the market to distinguish one brand of goods from another. Companies file trademarks for their product names, logos, and advertising to avoid both honest confusion and less-than-honest infringement.
While copyrights and patents refer to the actual products or their means of production, a trademark covers the ways we identify those products and attempts to avoid consumer confusion over the product and its source. For instance, Apple might patent the design for the iPhone, copyright the shape of the phone and the logo on it, and trademark the phrase "There's an app for that" used in advertising.
In the case of athletes, they can't patent their genes or copyright a specific on-field performance (yet), but they can trademark the ways they are described and how they describe themselves.
Marshawn Lynch is a perfect example. Lynch trademarked his nickname, "Beast Mode," after his rookie season in 2007. While he couldn't patent or copyright his 67-yard TD run against the Saints in 2011 that made Beast Mode a household name, he could use his trademark to make sure that no one else could sell "Beast Mode" T-shirts or hats.
There's no way to copyright the interviews that birthed the phrases, "I'm all about that action, boss," and "I'm just here so I don't get fined." But by trademarking both phrases, Lynch ensures he's the only one who can monetize his words on apparel or other products.
Filing for a trademark, while relatively easy, isn't necessary to protect one's property rights. A player can establish his or her rights in a mark simply through legitimate use of the mark in a business or commercial setting. But filing for a trademark early can give a player time to plan and roll out products while preventing others from profiting from the mark in the meantime.
Player Protections
So why are athletes using trademarks so often recently? While just about everyone is being more litigious about their inventions and images, athletes -- and especially NFL players -- may have extra incentives to protect their "brand."
The average career of an NFL player is just 3.3 years. And most NFL contracts are not guaranteed, so teams can jettison players at any time.
In the already short window of professional sport profitability, NFL players might have the shortest.
Add to that the 3+ years football players spend in college, where the NCAA restricts their ability to profit off of their own likeness or ability. Johnny Manziel was savvy enough to trademark his Johnny Football nickname while still in college. As The Big Lead reported at the time, Manziel couldn't profit from the trademark until after he graduated, but his corporation, JMAN2 Enterprises, could sue to keep others from using the mark to profit.
Perhaps Winston should've followed Manziel's lead during his Heisman-winning freshman year: "Famous Jameis" T-shirts were ubiquitous in Tallahassee two seasons ago, and even made their way out to California:
A gift from my dad before #FamousJameis was trademarked. Sorry, @Jaboowins, you deserve the royalties. pic.twitter.com/m2QQ7SwSuB
-- Christopher R. Coble (@ChrisRCoble) March 9, 2015
At least Winston will be able to decide who can use the "Famous Jameis" phrase (and now profit from its use) from here on out.
Darren Rovell, who was the first to report Winston's trademark filing, may catch a little flack for his coverage of athletes, teams, the NFL, and the sports industry as a whole as #brands. But as athletes see the kind of money others can make off of their labor, they're bound to be more aggressive about protecting and profiting from their image. Expect football players, who give three years of it profit-free and may only have another three years to build a career, to continue to be at the forefront of the athlete trademarking movement.
Related Resources:
- Marshawn Lynch to Trademark 'I'm Just Here So I Won't Get Fined' (FindLaw's Tarnished Twenty)
- Can the Seahawks Really Trademark the Number 12? (FindLaw's Tarnished Twenty)
- Firm's 'Johnny Football' Trademark Filing Rejected (FindLaw's Tarnished Twenty)
- Do You Need to Register a Trademark? (FindLaw's Free Enterprise)
