It’s increasingly evident that current and would-be professional athletes should be required to take a course in Trademark Law.  Two recent happenings in the sports world have led me to this conclusion.
First, Washington Nationals’ outfielder Bryce Harper filed a trademark application for “THAT’S A CLOWN QUESTION, BRO.” on June 13, 2012.  More startling was an article I read this week about Kentucky basketball star Anthony Davis (selected first overall in the 2012 NBA draft), who allegedly trademarked his unibrow.
Davis, in an interview with CNBC, said, “I don’t want anyone to try to grow a unibrow because of me and then try to make money off of it.”  He continued, “Me and my family decided to trademark it because it’s very unique.”
Really, Mr. Davis?  Really?

One could say many things about those statements, but I’ll restrict my comments to those pertaining to trademark law.
Before I do, however, a quick search of the Trademark Office Records reveals that Davis filed federal trademark applications for the marks FEAR THE BROW, RAISE THE BROW, AD23, ANTHONY DAVIS, and BROW DOWN.  There is no record of an application for a unibrow (and believe me, I’d love to take a gander at that application), but of course, maybe said application was filed so recently that it is not showing up yet in the Trademark Office’s database.
Like a modern-day Peter the Great (who in 1698 issued a degree that banned beards throughout Russia), Davis’ proclamation appears to make the unibrow off-limits to anyone who isn’t, well, him.
Should everyone sporting a monobrow in homage to Frida Kahlo, Cleopatra, or Leonid Brezhnev suddenly be shaking in their boots that they will receive a cease and desist letter from Anthony Davis’ lawyers?  Must they really FEAR THE BROW and get out their razors?
The quick answer is “That’s a clown question, bro.”  The more helpful one is, “No.”  Anthony Davis cannot stop people from wearing a unibrow.  Here are some basics of trademark law that explain why:
1.  Just because someone is known for something or makes a statement that goes viral doesn’t mean they own a trademark in that thing or statement.  Trademarks must be used on goods or in connection with services and they must serve as a source identifier.
A trademark is any word, name, symbol, or device, used by a person to identify and distinguish his or her goods from those manufactured or sold by others and to indicate the source of the goods.  Trademark rights exist only in connection with the goods and / or services with which a trademark is used.
Anthony Davis has not “used” his unibrow in connection with any goods or services.  Just having a unibrow is not enough.  And just saying a phrase that catches on like the Colorado wildfires is not enough either.  One has to sell or transport goods using the mark or render services under the mark in order to have “use” of the mark.  And one wonders how Davis would use his alleged unibrow mark as a source identifier for any goods (perhaps it will be a design mark depicting his face with said unibrow).
Anthony Davis has filed intent-to-use applications for his word marks.  So, assuming that he eventually uses his FEAR THE BROW, RAISE THE BROW, etc. word marks in connection with the goods and services listed in his trademark applications within the statutorily required time frame, he will eventually establish trademark rights to those marks.
2.  Trademark law does not give the trademark owner the right to stop everyone everywhere from using a mark.
First, trademarks are jurisdictional.  As mentioned above, in the U.S., rights arise from using a mark in commerce on goods or in connection with services.  Registration with the United States Patent and Trademark Office is not required to obtain rights; but there are many advantages to owning a federal trademark registration.
Trademark rights that come from using a mark are referred to as “common law” trademark rights.  These “common law” trademark rights exist in the geographic area where one has used the mark.  So if a company is using the mark GIANNI’S for restaurant services only in St. Paul, Minnesota, then that company’s trademark rights are limited to St. Paul and a “natural zone of expansion.”  In this example, Minneapolis (as St. Paul’s twin city) would likely be considered part of the “natural zone of expansion.”  That means that someone could operate a restaurant in Providence, Rhode Island called GIANNI’S and that would not violate any of the St. Paul’s GIANNI’S trademark rights.
Once you obtain federal registration for your mark, then your rights are nationwide as to anyone who started using the mark after you.  But your rights only extend to the U.S.  You can’t stop someone in Japan from using your mark unless you file a trademark application in Japan.
Additionally, once a trademark owner establishes trademark rights, those rights do not extend to everything.  If someone uses a trademark in connection with curtains, that trademark owner cannot likely prevent someone from using the identical mark for toys (unless, the mark becomes famous, but that lesson is for another day).  As an example, there is a trademark RITZ for “biscuits” and a trademark RITZ for “hotels.”  Nabisco (the owner of the RITZ mark for biscuits) cannot stop the Ritz-Carlton Hotel Company from using its trademark RITZ in connection with “hotel services.”  The goods and services are too dissimilar.  Consumers would not be likely to think that a biscuit company also runs a hotel.
Bryce Harper’s application for THAT’S A CLOWN QUESTION, BRO. lists only “Wearing apparel, namely, shirts, t-shirts, sweatshirts, jackets, pants, shorts, hats, visors, gloves, shoes.”  Therefore, at this point, he cannot stop someone from making mugs under that mark any more than he can stop Senate Majority Leader Harry Reid from saying it during a press conference.
Finally, some uses of a trademark are considered to be “fair uses” that a trademark owner cannot stop.  One example is where the mark is an existing word (not a coined or made up word) and the person uses that word to describe his own goods using the original meaning of the word.  An example of this is when a company used the term “fish fry” to describe their batter mixes for coating fish filets.  Although another company owned a trademark for FISH-FRI for a corn product used as a coating for food, they could not stop the other company’s use.  Another example is where people have to use the trademark to honestly explain what they are doing.  For example, if a garage services General Motors automobiles, they should be able to say so.  Imagine an advertisement saying “We can service your automobile from the big three U.S. automaker whose name is comprised of two words.”  That is a case where the person needs to use the trademark to truthfully talk about what they do.  Of course that garage cannot plaster GM’s logos everywhere and make it appear that they are an authorized service center for GM, if they are not.
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The bottom line is that while Anthony Davis may “stand out” for his unibrow, he certainly isn’t making proper source-identifying trademark use of it in any way.  Fans of Bert from Sesame Street can sleep easy.  Their beloved Muppet will not be forced to shave the center of his monobrow to form two distinct eyebrows any time soon for fear of a lawsuit from Mr. Davis.  Because that would be a clown lawsuit, bro.

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