Anthony Davis, formerly NCAA college basketball’s breakout star, and presently the New Orleans Hornets’ #1 draft pick, might soon be following in the footsteps of fellow NBA player Jeremy Lin, although those steps won’t necessarily be on the court as his team’s top-scorer.
Like Lin and “Linsanity” before him, Davis is facing a possible trade-mark battle over the catchphrases that have come to be associated with his athletic prowess. However, in Davis’ case, the trade-marks at issue are related to his prominent unibrow. The trade-marked phrases include “Raise the Brow” and “Fear the Brow”. CNBC reported in late June that Davis has already trade-marked both phrases, quoting him as saying “I don’t want anyone to try and grow a unibrow because of me and then trying to make money off of it. Me and my family decided to trade-mark it because it’s very unique“.
Leaving aside the dubious assertion that Davis’ athletic ability grants him the sole right to capitalize from sporting the “monobrow” (indeed, where would that leave Frieda Kahlo, not to mention Bert of Bert and Ernie fame?), there remains the problem that Davis’ claim to the catchphrases is not the first in line at the U.S. Patent and trade-mark Office (USPTO). Reid Coffmann owns the University of Kentucky apparel store Blue Zone, Kentucky being where Davis first garnered attention and led the Wildcats to a National Championship. Blue Zone started selling “Brow” merchandise early in the Wildcats’ season, and Coffman recently told TMZ that he created the slogan “Fear the Brow” and already owns the rights to it. Although the athletic department at the university has stated that they have kept a close watch on merchants peddling “Brow” merchandise by sending “half a dozen cease-and-desist letters”, NCAA rules prevented Davis from profiting from his own image.
Davis is now free of those constraints and embarking on his NBA career, a key part of which will involve his ability to turn his name and facial hair into a brand. Endorsements are just the tip of the iceberg for the modern athlete – from clothing and fragrance lines to starring in a reality TV show, the real game has moved off the court and into the offices of marketing firms. This makes sense when you consider the tiny window of time athletes have to amass their fortunes before their day in the sun is ended by either injury or advancing age. Davis made a sound business decision by moving early to protect the “Brow” catchphrases, but it may not have been quick enough if Coffman’s claims are held up by the USPTO.
According to Ryan Hilbert, special counsel to the intellectual property practice group at Sheppard Mullin LLP in California, there are essentially two ways to establish priority over a trade-mark, as found in the U.S. Trademark Act (known colloquially as the Lanham Act). The first is to establish that the mark “is in use in commerce“. This can be problematic when the trade-mark being sought is a catchphrase that is uttered once and then spreads like wildfire, way before it can be used commercially. The second option, and the route being used by Davis, is to file an “intent-to-use” application with the USPTO under s. 1(b) of the Lanham Act, which allows a person with a “bona fide intention […] to use a trade-mark in commerce” to apply for trade-mark protection. The mere intent to eventually use a trade-mark in a commercial manner suffices for the application process until the time comes for the trade-mark to be registered.
Luckily for Davis, the USPTO does not simply grant the trade-mark to the first person to claim it, and instead undertakes a review process which involves ensuring that the trade-mark complies with s. 2(a) of the Lanham Act by not falsely suggesting a connection with any person, living or dead. Davis is only the latest in a long line of athletes who have had to fight merchants or even their own fans to secure their rights to personal slogans, and can follow the lead of these athletes by invoking this provision. Tim Tebow of the New York Jets successfully challenged two applications to trade-mark “Tebowing”, a bizarre phenomenon where football fans mimic Tebow’s ritual of dropping to one knee in prayer after a victory. Jeremy Lin possesses the only remaining bid for the “Linsanity” trade-mark, after the USPTO rejected the numerous applications of opportunistic fans in May. “Linsanity” took the NBA by storm in February, when the former benchwarmer and Harvard grad came out of nowhere to lead the Knicks to a seven-game winning streak. The value of the trade-mark might have somewhat diminished following a knee injury that saw Lin back on the bench for the Knicks’ first-round playoff loss to the Miami Heat, but it certainly helped propel sales of the number 17 jersey.
Following in the wake of these decisions by the USPTO, it seems likely that Davis will emerge victorious from his battles over the “Brow”, whether they be with Coffman or another vendor looking to cash in on Davis’ distinctive forehead moustache. For his part, Coffman might be able to make the argument that the phrase “Fear the Brow” does not include any reference to Davis’ actual name, unlike “Linsanity” and “Tebowing”, and therefore cannot be considered as suggestive of a connection to Davis, who after-all, is not the only celebrity to have sported the unibrow. In the unlikely event that Coffman is successful, you’ll find me in line at the USPTO, filing for the rights to “The Uni-Brower” and cackling gleefully in anticipation of the vast fortune that will undoubtedly follow.
Britt Gunn is a JD Candidate at Osgoode Hall Law School.