Collegiate athletes and the right to their marks.

• Author: Clemente, Joseph E.

1. INTRODUCTION II. WHAT COLLEGIATE ATHLETES HAVE DONE A. Vince Young B. Anthony Davis C. Johnny Manziel D. What To Take Away III. The Current NCAA System A. NCAA Rules B. NCAA Rules and Trademark Law IV. Issues that Arise for a Collegiate Athlete in Trademark Law A. Use in Commerce Basis B. Intent to Use Basis 1. Limitations of Applying on an Intent to Use Basis 2. Lack of Objective Intent 3. Creating A Plan of Action V. Proposed Solutions A. Use in Commerce Basis B. Intent to Use Basis C. Olympic Model D. An NCAA-Created Body VI. Conclusion I. INTRODUCTION

   In the world of trademark law, collegiate athletes play without a coach. Collegiate athletes may compete with third parties, while they are strictly barred from profiting off their marks. When it comes to trademark application, registration, and protection, collegiate athletes are aimless individuals who face difficulty in developing their brands at the most basic level--trademark protection. Trademark rights serve as a basic protection against the unauthorized use of one's marks--a collegiate athlete's name, nicknames, and catchphrases. Under the current system, collegiate athletes are forced to travel highly uncharted territories. This comment serves to shed light on the approaches of prior collegiate superstars, the current collegiate athletic system, relevant trademark law, issues with the current system, and proposed solutions.

2. WHAT COLLEGIATE ATHLETES HAVE DONE

   The National Collegiate Athletic Association (NCAA) governs collegiate athletics through its Constitution and Bylaws. While several collegiate athletes have been presented with conflicts between their intellectual properly rights and the NCAA governing legislation, only a few examples are discussed below. The conflict concerns how a collegiate athlete reconciles his or her limitations due to the NCAA rules and a desire to protect one's intellectual property. The short answer: collegiate athletes do not typically apply for federal trademark registration. For a multitude of reasons, collegiate athletes forego application. They might not apply for trademark registration due to a lack of knowledge about trademark law, fear that filing an application will result in ineligibility or sanctions against the player or the team, confusion about the NCAA's stance, or shortsightedness. (1) The first thing on a collegiate athlete's mind is most likely not applying for trademark registration. Furthermore, due to the NCAA Bylaws, a collegiate athlete cannot contract with an agent for help in understanding the complicated trademark laws without risking ineligibility. (2) Furthering a lack of knowledge about law and policy, the NCAA has not published a statement or policy concerning the possibility of an athlete filing an intent to use trademark application. (3) Additionally, universities and colleges typically do not persuade their collegiate athletes to properly protect their intellectual property. (4)

   Collegiate athletes likely do not have the foresight to consider their long-term intellectual property rights. Their primary focus probably lies in development of their athletic abilities in hopes of entering a professional draft, without thinking that their nickname or catch phrase deserves proactive application with the United States Patent and Trademark Office (USPTO). All of these factors lead to a big picture issue that many professional athletes have recently faced: third parties applying for the right to use their intellectual property.

   Some collegiate athletes can become high-profile public figures and household names. Without proper and timely filings of trademark applications, they risk the chance that a third party will file an application and begin to use their nicknames or catchphrases for profit. These so-called "trademark trolls" willingly pounce on the opportunity to lay claim to collegiate athletes' marks, because collegiate athletes simply do not file applications. The lack of proper and timely trademark application filing has led professional athletes to resort to litigation and to fight for the right to use and protect their own intellectual property. While an athlete who encounters a third party applicant would most likely succeed in his or her legal battle, the costs of litigation may not only be expensive, but unnecessary. If collegiate athletes were capable of acquiring better knowledge about the law and proactively seek to protect their marks, then legal battles may not have to occur for them to retain their intellectual property rights from the start.

   Vince Young, Anthony Davis, and Johnny Manziel provide textbook examples of what collegiate athletes have done or not done in the past. Each of these three men became nationally recognizable names and collegiate superstars in their respective sport. They each had nicknames or unique characteristics, which could have provided the opportunity to grow their individual brands. As we will see, the choices made by these athletes during and immediately after their collegiate careers had an effect on their future intellectual property rights.

   1. Vince Young

      The day after Vince Young led the University of Texas to a college football national championship in the Rose Bowl in 2006, trademark applications to use his initials (VY) and his nickname (INVINCEABLE) were filed to sell products without Young's permission. (5) Moreover, Young was unaware that applications were even filed to use his initials and nickname in commerce. (6) Young was forced to commence a lawsuit against the third party who filed the applications to fully receive his intellectual property rights, which, again, were rightfully his from the beginning. Young did not file any applications to register his marks while in college, which appears typical for collegiate athletes from the famous to the run-of-the-mill. Young's inattentiveness and shortsightedness to the necessity of applying for trademark protection led him down the path of litigation. Although he ultimately settled the case and received the rights to his initials and nickname, Young spent two years of time and attorney fees to retrieve his trademark rights. (7) Perhaps if Young knew more about trademark law or was persuaded to file an application prior to third parties, then he could have avoided a drawn out legal battle that seemingly persisted past his professional career.

   2. Anthony Davis

      Anthony Davis of the National Basketball Association (NBA) became a freshman phenomenon while playing for the University of Kentucky. He led the Wildcats to a NCAA National Championship victory in 2012. After his freshman year, Davis entered the NBA Draft and went on to be the number one pick. Before his draft day, Davis filed trademark applications for "FEAR THE BROW," (8) "RAISE THE BROW," (9) "AD23," (10) "BROW DOWN," (11) and "ANTHONY DAVIS." (12) Davis was fairly proactive in protecting his intellectual property, but, for two of his marks, he was not the first person or entity to file an application. "FEAR THE BROW" and "BROW DOWN" both had trademark applications filed in late 2011, (13) The real fear in 2012 was not of the brow, but of how Davis would acquire full protection of his intellectual property rights. The options, at the time, were either that Davis file a lawsuit against the prior applicants or pay the third party for the rights. However, as time passed, the prior applicants abandoned their marks in November, 2012 (14) and March, 2013, (15) respectively. Davis was able to avoid a potentially lengthy, expensive litigation, or paying out a large sum of money, and now has successfully registered his marks. (16) These prior applications were filed with the USPTO before Davis had finished his first semester at Kentucky and, seemingly, as soon as Davis started his first NCAA basketball season. The situation worked out well for Davis, but imagine if he wished to stay in school for another three years. Moreover, the prior applicants may have been able to profit off Davis's likeness until he left college, which could have led to extensive litigation. All for the rights to phrases derived from Davis's physical feature--his unibrow.

   3. Johnny Manziel

      Johnny Manziel, the 2012 Heisman Trophy Winner, has also been proactive in applying for trademark registration. Manziel entered the NFL in the 2014 draft and was arguably the highest-profile draftee--infamous for his on the field play and off the field lifestyle. Manziel and his company, JMAN2 Enterprises LLC (JMAN2), have filed sixteen trademark applications. Manziel and JMAN2 have filed trademark applications for marks such as "Johnny Football," (17) "The House That Johnny Built," (18) and "Johnny Cleveland." (19) "Johnny Football" has become the focus of two main trademark battles.

      First, JMAN2 filed a complaint against Eric Vaughan for using the mark on a t-shirt. (20) Here, Manziel, through his company, effectively protected his mark. The case eventually settled and Vaughan stopped selling the shirts on his website. (21) Second, Manziel potentially faced litigation against Kenneth R. Reynolds Family Investments, who applied for the rights to "Johnny Football" three months before Manziel. (22) Litigation was avoided by the USPTO's rejection of Reynolds's application, allowing JMAN2 to move ahead with its application for the trademark. (23) Manziel also faced a competing trademark application from a company owned by the family of a longtime friend, Nate Fitch, for the mark "The House That Johnny Built," who filed an application a month before Manziel. (24) This dispute did not evolve into a lawsuit. Fitch's company abandoned the mark in November 2014. (25) Manziel's trademark history exemplifies what an athlete should do with their marks--apply for trademark registration and actively protect the use of that mark throughout the process. (26)

   4. What To Take Away

      The three prior examples show two approaches former collegiate athletes have taken to protect their marks...