LeBron James applied for a trademark through the United States Patent and Trademark Office (“USPTO”) this past summer. Typically, trademarks are sought for the exclusive use of a name, image, term, etc., but in James’ case he was more interested in protecting himself from litigation as a spokesman stated “[t]he filing was to protect the company from potential lawsuits should [James] decide to pursue any ideas, nothing of which is in development.” The trademark itself was declined at the early stage of the application process because the term was commonplace. A look at the application, which is public on the USPTO website, shows James had some interest in using “Taco Tuesday” for blogs and/or podcasts.
There are a number of reasons trademarks ultimately are not accepted, along with terms being too “common” as was the case with James. In addition, the likelihood of confusion and commercial conflicts are typical reasons applications are turned down. However, the NBA has quite the history when it comes to NBA players attempting to trademark certain phrases. Just recently as the Philadelphia 76ers were coming off multiple seasons where they won fewer than 20 games, management urged fans to “Trust the Process” and essentially wait for their young players to develop. Joel Embiid, the Sixers’ first round selection in 2014 decided to capitalize on the mantra and successfully trademarked “The Process” receiving formal registration information just days after the team was eliminated in the 2019 Playoffs. Embiid has applied for over 20 trademarks, the majority of which seem to be “process” related.
JUST IN: The US Patent & Trademark office has made @JoelEmbiid the registered owner of one trademark for “The Process.” Embiid has 20 other applications for the mark pending. First reported by @JoshGerben. pic.twitter.com/TETxjijbr2
— Darren Rovell (@darrenrovell) May 14, 2019
James’ new teammate, Anthony Davis, is quite familiar with the USPTO himself as he began applying for trademarks before he entered the NBA. Davis, self-aware of his appearance, sought protection for “Fear the Brow” and “Raise the Brow” shortly before the NBA Draft. Davis had to wait to leave his alma matter, Kentucky, before actually selling merchandise given the NCAA’s stance on players profiting from their own images. Jeremy Lin also filed to trademark “Linsanity” around the same time as Davis but it took Lin about two years longer long to protect his phrase, presumably because of the number of other applicants who were trying to cash in. Lin began his trademark fight in 2012 as a member of the Knicks. But by the time he was issued a Registration Number, he already had stints with the Rockets and Lakers and was in the middle of a contract with the Charlotte Hornets.
Sometimes players find themselves in the middle of a trademark battle unintentionally. Kevin Durant has had a number of nicknames dating back to his time at the University of Texas. One nickname that was popular for promoting the 2-time Finals MVP was “Durantula.” This did not sit well with guitarist Mark Durante who claimed to use the same name on stage and for his own personal promotion. Durante even trademarked the phrase back in 2008. When trading card company Panini, Nike, and others began promoting Durant as the “Durantula”, Mark Durante took note and more importantly took action. Durante filed suit and claimed he requested all parties cease use of the term to avoid confusion. Ultimately, as is the case with most litigation, the parties agreed to settlement for an undisclosed amount.
Pat Riley has a trademark story that crosses between sports. Riley initially trademarked “Threepeat” back in the 1980s when the Lakers won back to back titles and the thought was the team would be the first to win three consecutive championships since the Celtics of the 1960s. While Riley failed to lead the Lakers to the promised land of a trifecta, he continued with the trademark. This move paid dividends when the Bulls won three straight titles as well as when the Yankees won multiple World Series titles in the late 1990s. The Lakers would eventually threepeat long after Riley had moved on but Riley, a man who has unquestioned foresight, was still able to license out the term for others to use in merchandise sales.
Riley thought he had an opportunity to use the trademark again when his Miami Heat were on the verge of “three-peating” in 2014, but the San Antonio Spurs ended that thought in rather swift fashion. Nevertheless, Riley’s trademark tale is a classic example of “winning even when you lose” as his proactive steps will enable him to profit anytime a team is in the midst of a dynasty. As the NBA grows in popularity and merchandise sales continue to grow around the world, individual trademarks will shift the power from the traditional athletic wear companies to players, coaches, and teams. Every player mentioned herein has shown a level of intelligence and sophistication that should be an example for any business.