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Ever wonder what percentage of USPTO applications for federal trademark registration die in process? I do. Often, actually. But that could just be me. My guess is that at least a quarter, maybe as many as half, of the trademark applications filed each year fail to mature into registrations. I also wonder how many of those die due to the applicant’s failure to secure consent from the individual represented in the mark as required by the trademark rules governing name portrait consents. I suspect that number is much smaller, though not insignificant. Recent cases in point: LINSANE, LINSANITY and TIMSANE.
LINSANITY (which I wrote about here) and LINSANE are terms used to refer to New York Knicks basketball player, Jeremy Lin. As of today, there have been 11 trademark registration applications filed for LINSANITY; 2 have been abandoned and 9 remain pending, of which only 1 belongs to Jeremy Lin. There also are 2 applications pending for LINSANE, both of which are for apparel, and neither of which is owned by Jeremy Lin.
TIMSANITY is a term that 3 trademark applicants hope soon will apply to New York Jets quarterback, Tim Tebow, according to an article in the New York Post. The best part of the article has to be the quote from hedge fund manager, Frank DeGrim who was first to apply to register TIMSANITY (for apparel):[framed_box]“It’s an excellent business opportunity and it makes sense to register the mark — so it doesn’t surprise me at all that someone else had the same good idea,” DeGrim said. “Luckily for me, I just happened to have it first.” [/framed_box]
Sadly for Mr. DeGrim, he does not “have” anything I’m afraid, except significant exposure to risk of being shut down by Tebow and/or the NFL (which does not take IP lightly). You see, you cannot register a mark in a living individual’s name, image or likeness without their consent, nor are you allowed to create a false impression of endorsement; the PTO will deny applications on either basis. The PTO’s rejection of these applications is not the worst of it for Mr. DeGrim and the others who hoped to cash in on the fame of Jeremy Lin and Tim Tebow. Not only is it impermissible to register marks that are associated with living individuals without their consent, using such marks without consent may constitute trademark infringement (if the individual uses or license the mark for use as a brand), false designations of origin, as well as a violation of the person’s right of publicity, all of which that could land them in federal court facing both an injunction ordering them to cease use and monetary damages for their ill-gotten gains. Get-rich-quick-on-the-back-of-<insert-famous-living-individual’s-name-here> business models don’t work, but that doesn’t seem to stop folks from trying, see:
LINSANITY for apparel filed 02/07/2012 by Yenchin Matthew Chang
LINSANITY for apparel filed 02/09/2012 by Andrew Slayton
LINSANITY for business management of sports people filed 02/14/2012 by Roger Montgomery (Expressly Abandoned)
LINSANITY for jewelry filed 02/14/2012 by Wesley Kwong-Yew Tang & Yoonsoo Stephen Kim (Expressly Abandoned)
LINSANITY for eyeglasses filed 02/16/2012 by Empioneer Corp
LINSANITY for cell phone accessories filed 02/19/2012 by Empioneer Corp
LINSANITY for computer games, social networking, etc. filed 02/19/2012 by Parace, LLC
LINSANITY 17 for sports drinks, advertising services, action figures, bags, games, etc. filed 02/20/2012 by Parace, LLC
LINSANITY for eyeglasses filed 2/20/2012 by John S. Yuan
LINSANITY for beauty products filed 03/169/2012 by Atomic Beauty, LLC
LINSANE for apparel filed 02/13/2012 by Regina Cho
LINSANE for apparel filed 02/16/2012 by LTD Media, Inc.
TIMSANITY for athletic apparel filed 03/21/2012 by Frank DeGrim
TIMSANITY for apparel filed 03/22/2012 by Lifenatural, Inc.
TIMSANITY for athletic apparel filed 03/22/2012 by Daniel & Christian Perez
The PTO raked in $4875 on non-refundable filing fees from the above-listed applicants, each of whom could have saved themselves some cash by consulting counsel first.
The recent commoditization of trademark law does not render trademark attorneys useless. We know things that can save you money, like the fact that you MUST have the consent of a living individual in order to use and/or federally register a mark involving that person’s name/nickname, image or likeness or endorsement.