Trademark Star . . . Again: ‘Linsanity’ Phenomena Makes Its Way off the Court and Into the Trademark Office

By Tierryicah Mitchell *

LinsanityThe United States Patent and Trademark Office has seen its fair share of celebrity filings over the years, and the year 2012 is no different.  Just a month ago, famous parents Beyoncé and Jay-Z filed an application to trademark their daughter’s very unique name– Little Blue Ivy.  On February 13, 2012, New York Knicks basketball player and seemingly overnight sensation, Jeremy Lin, has filed an application for the trademark on the name given to the recent phenomena called Linsanity. Linsanity is the term that was given to reference Mr. Lin’s meteoric and spectacular rise to stardom and recognition.

In what the Associated Press called the “most surprising story in the NBA,” Jeremy Lin’s rise to fame is nothing short of remarkable.  On February 4, 2012, during a game against New Jersey Nets, Mr. Lin came off the bench and scored 25 points and garnered seven assists, which pulled the Knicks out of a losing slump and was the start of a six-game winning streak.  Mr. Lin’s status as an Asian-American and Harvard graduate has arguably led to higher television ratings, ticket prices, and a revived international interest in basketball, especially in China.  Mr. Lin is the first Harvard University graduate to play in the NBA since Ed Smith in 1953, and according to Bloomberg, the first Chinese- or Taiwanese-American to ever play in the league.

With such an inspiring story as that, who would not want to share in Mr. Lin’s newfound success?  A number of other individuals competing for the rights to the catchphrase certainly wish to partake in Mr. Lin’s good fortune.  Two of the applicants, Yenchin Chang and Andrew W. Slayton, filed for a Linsanity trademark before Mr. Lin.  Neither, however, have any ties to Mr. Lin.  A day after Mr. Lin filed, yet another man, Yoonsoo Stephen Kim, filed for the trademark.  Mr. Lin’s own agent, Roger Montgomery, also filed a Linsanity application for undisclosed reasons. Even though Mr. Lin was not the first in line for a trademark, Mr. Lin’s attorney, Pamela M. Deese stated, “We’re prepared to enforce his intellectual property rights.”

Exactly what are Mr. Lin’s intellectual property rights?  According to the United States Patent and Trademark Office (USPTO), a trademark is “any word, name, symbol, device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.”  Gary Krugman, a partner at the Washington-based firm of Sughrue Mion, surmised that because Mr. Lin is “the subject of the phrase Linsanity, he would probably be successful in opposing an application filed earlier than his own.”  This is because in trademark infringement claims are measured by whether the allegedly infringing trademark causes a likelihood of confusion with the actual owner’s trademark.

Under federal trademark law, if the term being trademarked is associated with a living person’s name, that person whose name was used must give their permission. Further, if that person happens to be famous, as was the case with Blue Ivy and is now the case with Mr. Lin, state law may allow that person to have special privileges. According to Kenneth Liu, an intellectual property and internet law attorney, states might “grant a right of publicity that may be violated by someone attempting to use his name commercially without permission.”

However, even if Mr. Lin somehow is not able to secure the trademark rights to Linsanity, Knicks fans can still continue to use the term.  As pointed out in GlobalPost, “owning a trademark does not give the owner the right to stop others from using the term generically, but only from using the same term or any similar term to sell goods or services already sold by the trademark’s owner.”  Only time will tell who will ultimately get the rights to Linsanity as trademark applications can take around three months to be examined and published.  Of course, should Mr. Lin not be able get the trademark on Linsanity, I would suggest the following:

1. Lin-ning, which is a play off of Charlie Sheen’s, “Winning.”

2. Linsane

3. And my personal favorite, Lin Your Face.

*  Tierryicah D. Mitchell is a third-year law student at Wake Forest University School of Law. She holds a Bachelor of Arts and Science in Political Science and History from the University of North Carolina at Chapel Hill. Upon graduation in 2012, Ms. Mitchell plans to work for the federal government.