By: Zachary Wadlé
In this day and age, professional athletes increasingly understand the value of their persona and related trademark rights. Earlier this year, Jeremy Lin of the New York Knicks exploded on the basketball scene and created a media frenzy in the process. The interest was so intense that reporters started to refer to the scene surrounding Lin as “Linsanity.” Jeremy Lin promptly filed a trademark application for the term “Linsanity” to secure sole use of the term in connection with various goods. A few weeks ago, Washington National rookie phenom Bryce Harper was asked what he apparently considered to be an inane question from a reporter after a game. Harper responded by saying “That’s a clown question, bro” and moved on to the next question. Harper’s humorous response was replayed constantly on highlight shows and internet sites, and developed a life of its own. This culminated when Senate Majority Leader Harry Reid replied to a political reporter’s question on immigration policy with “That’s a clown question, bro” and refused to answer the question. It was unclear whether Reid thought this was a legitimate response to the question given the state of American politics, or was playing to his Nevada constituent base (Harper is a native of Las Vegas). The day after uttering the phrase, Harper filed a trademark for the term “That’s a clown question, bro” which he intends to emblazon on a variety of apparel, such as jackets, pants, hats, gloves, etc.
The most recent athlete trademark application involves Anthony Davis, former University of Kentucky basketball star and recent number one pick in the 2012 NBA draft of the New Orleans Hornets. Davis has a unique facial characteristic – a prominent “unibrow” that he refuses to shave. Davis has always embraced the unibrow look, and recently filed trademark applications for the catchphrases “Fear the Brow" and "Raise the Brow” to further capitalize on his interconnected brows. However, Davis’ trademark application for “Fear the Brow” is somewhat complicated. NCAA rules bar college players from financially profiting from athletics while at school, and prevented Davis from protecting and profiting from his intellectual property rights himself during college. Exploiting this restriction, Reid Coffman — owner of the University of Kentucky apparel store Blue Zone — trademarked "Fear the Brow" last November for his popular Davis-themed merchandise sold to Kentucky fans.
Trademark rights are typically “first come, first served” – meaning that the first to file and secure the mark has superior rights to a later filer. As with many subjects in the law, however, there are exceptions to this rule. For Coffman, it’s not a clear case just because he filed first. Anthony may well have a viable claim to the trademark, because the "Fear the Brow" slogan trades off his own persona as exemplified by his unibrow. Davis may choose to pressure Coffman to relinquish the mark based on Davis’ “right of publicity” as a well-known public sports figure.
The right of publicity protects the commercial or business value of one’s persona or identity, and allows an individual to prevent others from unfairly appropriating this value for their commercial benefit. Sources of protection include: (1) Section 43(a) of the Lanham Act, which holds that unauthorized use of an aspect of one’s persona, or use of a persona feature confusingly similar to a feature of one’s persona, on or in connection with any goods or services can constitute a false designation of origin, false or misleading description of fact, or false or misleading representation of fact; (2) various State laws, extending protection to living and deceased persons; and (3) Common law, which differs state by state but generally holds that use of a person’s identity for the "purposes of trade" without that person’s consent constitutes unfair competition.
Trademark rights and publicity rights are sometimes juxtaposed, because each set of rights is a form of intellectual property that grants owners the exclusive power to commercially exploit their property. But the right of publicity is only analogous to the law of trademarks and not identical. The key to the right of publicity is the commercial value of a human identity, while the key to the law of trademarks is the use of a word or symbol in such a way that it identifies and distinguishes a commercial source. There are, however, some noteworthy similarities between the right of publicity and trademark law. Like a trademark, the right of publicity can function as a quality assurance to a consumer, especially if a public figure maintains self-imposed quality standards and carefully controls licensing rights. Also, proprietors of both trademark and publicity rights seek to prevent others from reaping unjust rewards by misappropriation of the mark or celebrity’s fame.
If Reid Coffman continues to sell his “Fear the Brow” apparel, Anthony Davis likely has a strong argument against him for violation of Davis’ right to publicity. Coffman’s line of “Fear the Brow” apparel undoubtedly invokes Davis’ persona and his unique unibrowed look, consumers recognize Coffman’s clothing line as invoking Davis’ persona, and Coffman is commercially profiting from this activity without the consent and to the detriment of Davis. Despite Coffman’s prior-in-time trademark application for the “Fear the Brow” term, he appears to be on shaky legal ground should Davis furrow his brow and press the issue in court.