Anthony Davis is a well-known college basketball player who completed his freshman season in 2012 playing for the University of Kentucky Wildcats and thereafter declared his eligibility for the 2012 NBA draft. Most people agree that Davis will be the number one overall pick in the 2012 NBA draft. He is known for being a highly skilled power forward, and for his distinctive unibrow.
As the 2012 NBA draft approached, the news wires began to buzz with headlines proclaiming that “Anthony Davis Has Trademarked His Unibrow.” While these headlines likely horrified every esthetician in the country, the headlines actually misrepresent what Mr. Davis has done, and they overlook fundamental components of trademark law.
As an initial matter, federal trademark registrations are only available where a mark has been used in interstate commerce. Although nationally televised, it is not clear whether Mr. Davis’ sporting a unibrow on national television while playing basketball is enough to qualify as a “use in commerce” as that term is defined under the Lanham Act. Setting that aside (and assuming that it might qualify as a use in commerce), a trademark application relating to one’s unibrow or other physical characteristic likely would be precluded by the fact that it seeks to register a mark for something that is functional.
According to Wikipedia, the “main function of eyebrows is to prevent sweat, water, and other debris from falling down into the eye socket.” Accordingly, as a soon-to-be professional athlete, it would appear that not only is Mr. Davis’ eyebrow functional, but that its function plays a vital role in his success: it undoubtedly operates more efficiently in preventing sweat from entering into his eyes than most people’s obviously inferior unjoined dual eyebrows. However, because functional items are not identifiers of the source of goods or services and cannot be registered as a trademark, Mr. Davis’ sweat deflecting unibrow is not by itself a proper subject for a trademark application.
Having undoubtedly recognized that filing a federal trademark application covering his unibrow was unlikely to result in a federal registration, Mr. Davis took a smarter approach. According to Mr. Davis, he actually has filed trademark applications for phrases relating to his unibrow, such as “fear the brow” and “raise the brow,” which have become popular among his fans during the Wildcats’ national championship run. Mr. Davis – likely anticipating his future success on the NBA courts – now seeks to create a brand image to market himself for endorsements by promoting slogans relating to his eyebrow. As a result, we now can wait anxiously to learn not only if Anthony Davis will be an NBA superstar, but also to find out whether the marketing of catch phrases based on an awkward physical characteristic represents a successful business model.