Academic journal article Marquette Intellectual Property Law Review

Collegiate Athletes and the Right to Their Marks

Academic journal article Marquette Intellectual Property Law Review

Collegiate Athletes and the Right to Their Marks

Article excerpt

I.   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.

II. 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. …

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