Sunday, October 21, 2012

Clearing It Up: Tebow Does NOT Have A Trademark for TEBOWING

There have been a lot of reports that Jets Quarterback/Fullback/Running Back Tim Tebow has registered the trademarks TEBOWING and TIM TEBOW.

The reports are saying that Tebow has secured trademark registrations or that his trademarks have been “approved”.

However, this is not right. Tebow has not secured a trademark registration for TEBOWING or TIM TEBOW.

He’s only filed trademark applications for the marks and those applications haven’t matured to registration. Once he gets a trademark registration for the mark, he will have TEBOWING  and TIM TEBOW trademarked in the traditional sense.

Side note – you can actually have a trademark even if you don’t have a trademark registration. How? You get trademark rights simply by using a mark in the marketplace. Those special rights are called common law trademark rights. Problem with those rights is that they are limited. The goal is always to get a trademark registration. Once you get it, your mark is a heck of a lot stronger. Ok let’s move on.

But His Marks Were “Approved”

Yes his applications have been approved. But that is just one step in the registration process – and is by no means the end. The next step in the application process is called opposition, where any third party can object to his applications.

After that – and most importantly – the next step will be Tebow showing he’s used his marks in the trademark sense. That means using it in association with the sale of stuff. Until he has sales, he won’t get trademark registrations. That could be a while.

Wait – Hasn’t Tebow Used The Marks?

His trademark applications were all filed on intent to use in the U.S. What does that mean? At the time the applications were filed, Tebow did not have use of the marks TEBOWING and TIM TEBOW.

And it looks like he hasn’t started to use TEBOWING and TIM TEBOW as marks.

You’re right that both TEBOWING and TIM TEBOW have been used a lot. But here’s the thing:  there is a difference between using something generally and using it as a trademark. Trademark use means that Tebow is, for example, slapping the marks on goods and selling them. So you need 2 things to have trademark use: (1) Tebow selling the stuff, and (2) an economic component to the use.

So when you see “Tebowing” in headlines or Tebow talking about Tebowing that’s not going to be trademark use. To get elevated to trademark use, you need to have that economic component.

Why does that matter? In order to acquire enforceable trademark rights, you need to use the mark as a mark. If you don’t use the mark generally you can’t get the mark or enforce it against people trying to rip you off. So even though we’ve heard TEBOWING used a lot, that doesn’t give Tebow any trademark rights.

What Are Tebow’s Trademarks

Tebow has applied for a bunch of trademarks. Well, technically it’s not him but a company called XV Enterprises LLC. In all, Tebow has applied for 13 trademarks: six for TIM TEBOW and 7 for TEBOWING.

Here’s a snapshot from the U.S. trademark office called the USPTO:

So Tebow has filed trademark applications for the marks TEBOW and TEBOWING (at trademark law trademarks are put in upper caps – so I’m not screaming these marks at you). There are multiple applications for the same mark because they cover different good and services. For example, one application covers clothing and another application for the same mark covers watches.

So How Does Tebow Get His Trademark Registrations

His 13 trademark applications as still pending and haven’t hit registration. In order to get them to registration, he will need to show that he has used the marks in a commercial sense; that he’s selling stuff with the mark on it. Until then, he won’t get his trademark registrations.

It’s Ripoff Time

There have been a lot of people that have tried to capitalize on Tebow’s fame by way of filing trademark applications. Here are some of the marks that have been filed by people that are not Tebow: IT’S TEBOW TIME, TEBOW TOWEL, TEBOW NATION, THERE IS NO I IN TEBOW, WHAT WOULD TEBOW DO, LORD & TEBOW and TEBOW TIME.

Some of these applications have gone abandoned. No doubt that Tebow’s legal team has issued cease and desist letters. The U.S. trademarks office has also said no to some of these applications on the basis that they falsely suggest a connection to Tim Tebow. Since Tebow didn’t file those applications, they were blocked.

Personality Rights: Another Way To Stop

Apart from his trademark rights, Tebow can also protect his name by way of personality rights. People have the right to control the commercial use of their name, image, likeness, etc. So Tebow doesn’t just have to rely on trademark rights to stop people from using his name.

Did Tebow Patent TEBOWING?

No. A patent is not a trademark. Completely different. A patent refers to protecting an invention and not the name of the invention.

Can People Still Say TEBOWING?

Yes. Trademark rights prevent commercial use like selling shirts and hats. However, people can still use it in a non-commercial way like in headlines or as part of stories. As well, Chris Berman and Company can still use it on NFL Countdown.

Was It A Good Idea To Try And Get Trademark Registrations For TEBOW

Yes – very good idea. First it sends a message that there will be consequences for anyone trying to profit off Tebow’s name.

Second, assuming he gets his trademark registrations, he will be able to stop anyone from using his marks or confusing marks. That’s going to be a real effective tool.

The trademarks though won’t help him get more playing time with the Jets. On that front, he’ll just need to wait - or become a tight end.

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