Athletes trademarking the phrase that pays

July, 13, 2012
7/13/12
10:36
AM ET
Lin FanJeyhoun Allebaugh/NBAE/Getty ImagesMany athletes, such as Jeremy Lin, are trademarking phrases or nicknames to keep them their own.
If you’re a “man on a mission” who “can’t wait” for the next “Linsanity” or “Tebowing” craze to make another athlete “Invinceable” as a businessman, you’re probably just an “unbelievably believable” fan.

Or, if you read that first sentence and recognize Austin Rivers, Bart Scott, Jeremy Lin, Tim Tebow, Vince Young and Robert Griffin III, you’re just very tuned in to what athletes are saying -- and trademarking.

Because now, when a quote or quip uttered in a news conference or a postgame interview strikes a chord and goes viral -- or an athlete or celebrity believes it might have future worth -- it’s registered as a trademark.

It’s no longer just an answer to a question, a slogan, a turn of phrase, a saying or the athlete’s name, nickname, gesture or appearance. It’s intellectual property. It’s part of an athlete’s brand. It’s a business opportunity.

When Baylor quarterback Robert Griffin III talked about the “unbelievably believable” accomplishment of winning the Heisman Trophy in December, he and his representatives knew they had gold.

Griffin’s firm, Thr3escompany, LLC, filed for trademark protection of the phrase on Jan. 20. The trademark application indicated the phrase could be used on anything from T-shirts to shoes.

It all makes perfect sense to Jaia Thomas, an attorney in New York City who specializes in intellectual property rights and represents athletes and celebrities. She recently co-authored a paper with student Brett Pavony for the Pace Intellectual Property Sports and Entertainment Law Forum titled: “For the Love of the Name: Professional Athletes Seek Trademark Protection.”

[+] EnlargeRobert Griffin III
AP Photo/Tony GutierrezWhen Robert Griffin III said winning the Heisman would be "unbelievably believable," it caught on.
“It’s extremely important,” Thomas said of the need to protect a phrase, slogan or nickname. “One of the main reasons is for economic reasons. You don’t want other companies, other individuals, making a profit off of your name or your logo or your brand, so it’s extremely important for athletes to rush to secure all the IP [intellectual property] rights so others don’t make a profit off of them.

“It’s also good just in terms of brand building. As athletes start to build their brand it’s good to start to protect their individual property rights as soon as possible.”

Anthony Davis, the former Kentucky star and the No. 1 overall pick in the NBA draft by New Orleans, is the latest athlete to attract attention by applying for a trademark. He’s registered “Fear the Brow” and “Raise the Brow,” both nods to his distinctive, dark unibrow and his defensive intensity.

His new Hornets teammate, Rivers, the 10th pick in the NBA draft, also hopes to protect “Man on a Mission” -- the message (M.O.A.M) he has tattooed on the inside of his left wrist.

Davis and Rivers are two of hundreds of athletes and sports personalities who’ve followed the lead of Pat Riley, the former NBA coach who was a trademark pioneer when he registered the phrases “three-peat” and “3-peat” in 1989 in anticipation that his Los Angeles Lakers would win a third straight NBA title.

They didn’t win the third in a row, but other teams have and Riley’s “three-peat” trademark is still active (although “3-peat” has expired). A few years ago, students at USC tried to register the term “Three-Pete” in homage to a possible third national football championship by coach Pete Carroll’s Trojans, but their bid was rejected by the U.S. Patent and Trademark Office as being too similar to Riley’s.

Some trademarks, past and present: Three-peat (Pat Riley). Let’s get ready to rumble! (Michael Buffer). Refuse to lose (John Calipari). Manny being Manny (Manny Ramirez). Let’s play two (Ernie Banks). Hit King (Pete Rose). Turn 2 (Derek Jeter). LIVESTRONG (Lance Armstrong). Holla Energy (Kevin Garnett). He Hate Me (Rod Smart). Mr. October (Reggie Jackson). Fab Five (Jalen Rose). You cannot be serious (John McEnroe). Stomp you out (Michael Strahan). Lovee (Venus and Serena Williams). Mad Chad (Chad Johnson/Ochocinco). Kobe Bryant Flight 24 (Kobe Bryant). Thorpedo (Ian Thorpe).

Trademark protection can be sought for almost anything.

Some athletes -- such as Michael Jordan, Donovan McNabb, Tiger Woods and Natalie Gulbis -- have filed for trademark protection of their names. Magic Johnson has a trademark on Earvin “Magic” Johnson. All-time NBA scoring champ Kareem Abdul-Jabbar has trademarked “Sky Hook,” the name of his signature shot. NFL wide receiver Terrell Owens has protected “T.O.”

Joseph Mandour, who specializes in intellectual property law and represents a number of celebrities, counsels his clients to guard their interests -- no matter what they are.

“It’s smart to reserve your trademark rights, even if you’re not positive yet all the different uses that you’re going to make [of them],” said the managing partner of Mandour and Associates, which has offices in Los Angeles, Irvine, Calif., and San Diego.

Added Thomas: “There aren’t any ground rules, per se. It’s usually organic. Once something does kind of stick, then and there I kind of recommend that an athlete move forward as soon as possible with trademarking that name or logo.”

[+] EnlargeAnthony Davis
Layne Murdoch/NBAE/Getty ImagesAnthony Davis has put efforts into making sure no one else profits from his signature unibrow.
It’s also not confined to sports. Actor Charlie Sheen reportedly registered 22 phrases (such as “Tiger Blood”) in 2011, Paris Hilton has the term “That’s hot!” and chef Emeril Lagasse has “Bam!”

Intellectual property is one of the hottest fields in law, says Mandour, and the rise of the Internet and social media has fueled its growth.

Now, a person sitting at home can watch a phenomenon develop or hear a phrase -- such as Tebowing, Linsanity or “That’s a clown question, bro” -- and rush to register it as a trademark and cash in by selling items online with the words or logo by setting up a website, Twitter account or Facebook page. The athlete is then forced to challenge the “cybersquatter” for use of the term in commerce.

Twenty years ago, that type of quick capitalization would have required someone to open up a physical store.

That’s why attorneys such as Thomas and Mandour urge their clients to quickly file for trademark protection. It’s simple -- it can be done online through the U.S. Patent and Trademark Office site or by mail -- and costs between $275 and $375.

With so many opportunities for a high-profile athlete to build a brand -- through his or her performance, via a website, Twitter, YouTube, Facebook or even reality TV -- which all can result in more income, athletes are smart to protect their words, even if it may seem silly to the fans reading about it.

Already, Bryce Harper is cashing in on “That’s a clown question, bro” with the phrase on shirts made by Under Armour, a company with which Harper has an endorsement deal.

“I think athletes are becoming a little smarter about their own brand and wanting to make multiple streams of income for themselves both on and off the field,” Thomas said. “So by trademarking a lot of these phrases they’re able to make profits and come up with clothing lines and colognes and all these other different ventures. I think a lot of athletes are just becoming smarter businessmen and wanting to kind of dibble and dabble in a lot of ventures aside from their particular sport.”

More trademarks, past and present: Revis Island (Darrelle Revis). They are who we thought they were (Dennis Green). That’s a clown question, Bro (Bryce Harper). Getcha Popcorn Ready (Terrell Owens). Fear the Beard (Brian Wilson). The Great One 99 (Wayne Gretzky). The Black Falcon (Harrison Barnes). Shaqtacular (Shaquille O’Neal). Say Ow Gear (Junior Seau). Wilfork U Up (Vince Wilfork). Got Strange? (Jared Allen). The Big Unit (Randy Johnson). It’s go time (Bret Freeman). I love me some me (Terrell Owens). King James (LeBron James). Rice Rocket (Michelle Kwan). Lightning Bolt pose (Usain Bolt). The Hit Man (Chuck Hiter).

The wave of athletes seeking trademark protection is likely to get bigger. Thomas says it’s grown significantly in the past five to seven years, and it’s no longer limited to established stars.

“Within the past year, I’m seeing a lot of younger players kind of move forward with securing their trademark rights,” she said. “Robert Griffin, Anthony Davis, Harrison Barnes, Austin Rivers. I’m seeing a lot of athletes come straight out of college, rushing to secure their trademark rights.”

If athletes don’t act quickly, others can swoop in: the cybersquatters.

In the case of “Linsanity” and “Tebowing,” where a person’s name is involved, the trademark office most often has ruled against others using the terms, even though claims might have been filed before the athletes filed.

[+] EnlargeBryce Harper
Greg Fiume/Getty ImagesUnder Armour is selling shirts with Bryce Harper's famous phrase, "That's a clown question, bro."
“It’s something that happens quite often,” Thomas said. “And it can be done. But usually the rule from the trademark office is that no one can register a trademark if it falsely suggests a connection with a person or institution.”

Still, it doesn’t stop people from trying. And in cases when the athlete’s name isn’t involved, it can get dicier. When Ravens linebacker Terrell Suggs referred to his alma mater in 2011 as “Ball So Hard University” (instead of his actual school of Arizona State), another man filed for a trademark on the term before Suggs, prompting Suggs to fight for his right to the term, which still isn’t resolved.

Of course, it’s not just individuals who file for name and phrase protection. The NFL and Olympics, for instance, aggressively go after parties who try to use their terms, titles and logos.

The NFL owns the “Who Dat?” phrase related to the New Orleans Saints, Nike owns the Michael Jordan Jumpman logo, the Colorado Rockies own “Rocktober” and Miami University of Ohio has trademarked its nickname, “The Cradle of Coaches.” The Allegheny Valley School Corporation owns “Terrible Towel,” a term created by Pittsburgh Steelers announcer Myron Cope for the yellow and black towels waved at Steelers games. Cope transferred his rights to the school, which helps the disabled, in 1996 to help it raise money.

One of the keys for an athlete to successfully trademark a phrase is to show it can be used in commerce and in a very specific way that is identified with him or her.

That’s why when a request for trademark is filed, a person lists what it will be used for, such as hats, shirts, coffee mugs, video games, etc.

Mandour, like Thomas, sees celebrities and athletes filing for trademarks as a trend that will continue to grow.

“I think people in general are becoming savvier,” he said. “You know, how many times does a young athlete have to read about something like [Brian Wilson’s] “Fear the Beard,” or those sorts of things, to know that when they start becoming popular that, ‘Hey, this is something I can actually own and make money from.’”

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