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In Case You Hadn’t Heard…Sports Trademarks and Damages

by Keith Hock

The recent Super Bowl was a disappointment for 49ers’ fans… and intellectual property attorneys?  I didn’t watch every minute of the game (I needed to make sure I was in front of the TV for the commercials) so I don’t recall seeing 49ers’ quarterback Colin Kaepernick “Kaepernicking” (kissing his flexed forearm in celebration) during the game.  Or should I say KaepernickingTM?  That’s right, Mr. Kaepernick has filed an application with the United States Patent and Trademark Office to trademark his now famous pose.  According to the application, Mr. Kaepernick intends to market t-shirts bearing his name and image.  In doing so, Mr. Kaepernick follows in a long line of sports themed trademarks (or potential trademarks) of catch phrases or images, including:

  • Three-peat and 3-peat – trademarked by Pat Riley, former coach of the Los Angeles Lakers, after his team won two straight NBA titles in 1988.
  • Linsanity – trademarked by former New York Knick (and current Houston Rocket) basketball player Jeremy Lin after he took the NBA by storm last winter.
  • Tebowing – refers to the celebratory pose of current New York Jet quarterback Tim Tebow.  It is not clear if Mr. Tebow has trademarked the term but others have tried and been denied.

While these may seem like relatively lighthearted trademarks, there could be serious business issues related to both capitalizing on these phrases and infringing on them.  While it seems unlikely that striking a pose after winning a basketball game in a local accountant’s or lawyer’s league would result in an infringement suit or damages award, selling shirts or other merchandise with a trademarked phrase or image could create potential legal exposure and a damages claim for lost profits or unjust enrichment (both potential measures of damages in trademark infringement suits).

Sports related merchandising is big business and leagues work hard to ensure that only licensed merchandise is sold.  According to this report from ESPN, the NFL seized $13.6 million of counterfeit merchandise in a season-long effort code named “Operation Red Zone”.  This probably represents just a fraction of the counterfeit merchandise that was sold by the 4,200 websites that were shut down by the NFL during the season.  It is not clear if the NFL pursued damage claims against any of these websites, but based on the size of the market, the unjust enrichment likely ran into the millions of dollars.

Given the dollars at stake – and the relatively short professional careers of most athletes – is it any wonder that individual players and coaches seek to capture their own slice of the merchandise pie by trademarking phrases and images that have become synonymous with their name?

What do you think? Should athletes and coaches be able to trademark phrases and images based on personal traits or actions?  Have you ever pursued a damages claim for infringement of a sports related trademark?  Please share your thoughts and stories in the comment section below.

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