Looking to future, more NCAA athletes seek own trademarks
Boston — Like their counterparts in the pros, more college football stars are starting to snatch up trademark rights to their names, nicknames and fan slogans.
The NCAA generally forbids its players from cashing in on their athletic success, but by gaining legal ownership of phrases tied to their personal brands, players can pave the way for lucrative licensing deals in the future and can prevent others from exploiting their names.
This month, Ohio State University running back Ezekiel Elliott applied for five trademarks, including rights to use his nicknames “Zeke” and “Eze” on merchandise, according to records in a public database kept by the U.S. Patent and Trademark Office.
Elliott also filed for trademarks to use “Hero in a half shirt” and “In crop top we trust” on apparel, and for the restaurant name “Zeke’s Crop Top Bar and Grill,” a nod to the junior’s preference to roll his jersey up like a crop top.
Elliott was unavailable for comment, and his father declined to explain the trademarks.
At Mississippi State University, quarterback Dak Prescott applied for the trademark on his name last fall, along with “Dak Attack” and “Who Dak,” phrases that fans have waved aloft on game-day signs.
Others to pursue trademarks while in college include NFL quarterbacks Johnny Manziel and Jameis Winston, both Heisman Trophy winners. Before transferring to TCU, quarterback Kenny Hill’s family sought a trademark on “Kenny Trill” but later abandoned the application.
In professional sports, athletes routinely snag trademarks for their nicknames and taglines, and then companies pay hefty sums to use their monikers on merchandise.
Marshawn Lynch of the Seattle Seahawks, for example, owns rights to “Beast Mode.” Charlotte Hornets point guard Jeremy Lin has “Linsanity.” The company that represents Tim Tebow of the Philadelphia Eagles owns the trademark to “Tebowing.”
As the practice has become more common in the pros, some universities and lawyers are encouraging college athletes to follow suit.
“They’re becoming these public personas at these universities, and why not capitalize on that?” said Matthew Swyers, CEO of the Trademark Company, which helped Elliott submit his trademark applications.
With a trademark in hand, Swyers said, college athletes will be one step ahead when they start pursuing licensing deals after school.
Specifically, the athletes are asking for the legal right to sell a wide range of merchandise branded with their names, from jerseys and hats to toddler onesies.
Landing those rights can also be a defensive maneuver against so-called trademark poachers.
If athletes don’t secure trademarks, anyone else can apply for ownership at a cost of about $200. To wrestle it back, athletes can face long and costly court battles.
“Filing a trademark application is a very simple process,” said Ryan Hilbert, a Jacksonville attorney who specializes in intellectual property and sports law. “People will jump in as quickly as they can to file for marks that are coined by athletes.”
Manziel famously claimed the trademark to “Johnny Football” in 2013 amid a legal battle with a company that had been selling T-shirts using his nickname.
At Mississippi State, Prescott faced a similar situation when a man started making T-shirts with his name.
“It was kind of cool at first, because it’s sort of a dream to see T-shirts with your name on it, but then you realize it could be a problem,” Prescott told the Associated Press.
Under the advice of lawyers, he applied for the trademarks and then sued the T-shirt maker last year, who agreed to stop.
“I’m not doing anything with them now,” Prescott said of the trademarks, “but when I get done playing in college, I have the option of using them.”
Although experts said the practice is growing, it’s mostly limited to a small group of big-name athletes. Officials at the universities of Florida, Oregon and California said they hadn’t heard of any students interested in pursuing trademarks.
“I think it’s just something that a lot of student athletes aren’t aware of,” said Mit Winter, a Kansas City sports law lawyer who has represented the NCAA and the NFL.
Still, some experts see the trademark trend as one more blow to the notion of amateurism in the NCAA.
“Athletes are gaining more and more rights in connection with their performance on the field,” said Hilbert, the Jacksonville attorney.
Recently, the NCAA lost a court ruling that found students are entitled to compensation when their likenesses are used commercially. It stemmed from a lawsuit filed by former UCLA basketball star Ed O’Bannon. The NCAA is appealing.
The judge in that case is now considering whether to grant class-action status to other current and former athletes who are suing the NCAA and aim to abolish the league’s prohibition against competitively paying players.
Many universities, meanwhile, have stopped selling jerseys with the numbers of current players, in part because of legal concerns.
Hilbert predicts that, as universities shine the spotlight away from individual athletes, more players will step in to take ownership of their own brands.
“It’s a gradual move toward commercializing the sport,” Hilbert said. “As the demarcation between amateurism and professionalism further erodes, you’re going to see these guys get even more savvy about branding matters.”
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