Posted: November 27th, 2012
By: Stephen DeGrow *
Tim Tebow attracts questions. Is he a starting quarterback? Is he overrated? Is he compatible with Taylor Swift? Can he trademark Tebowing? Since October 9, 2012, the last question has an easy answer- yes!
Tim Tebow is the official owner of “Tebowing,” which gives him the rights to use “Tebowing” on “hats, T-shirts, . . . jewelry, clocks, watches, cuff links,” and even pantyhose. The Patent and Trademark Office (PTO) awarded the trademark after receiving requests from two internet entrepreneurs. The founder of Tebowing.com filed for “Tebowing” rights on October 27, 2011. And on December 6, 2011, the founder of Tebowinggear.com did the same. The PTO refused both registration requests.
The requests were rejected in accordance with 15 USC § 1052. Under § 1052, the trademark office can refuse to register a mark if the trademark “may . . . falsely suggest a connection with persons, living or dead.” An attorney with the PTO found this section applicable to both entrepreneurs and denied their applications. A few months later, Tim Tebow claimed “Tebowing.”
Tim Tebow’s latest victory has drawn comments from sports writers. ESPN’s DJ Gallo suggests that Mr. Tebow trademark “new Tebowing,” which means “inexplicably sitting on the bench behind a bad quarterback, except for occasionally entering the game to run for 4 yards.”
Despite some humorous jabs, Tim Tebow has good reason to own the trademark. It gives him control of “Tebowing,” which, not surprisingly, he plans to use for good. According to Tim Tebow, all proceeds from the trademark will go to the Tim Tebow Foundation.
Even with good intentions, it seems strange to trademark a last-name-verb. But the idea is hardly new. Earlier this year, New York Knicks guard Jeremy Lin sought a “Linsanity” trademark shortly after he put up several twenty-point games in February.
Like “Linsanity,” the value of “Tebowing” depends in part on performance. On Sunday, October 28, 2012, the performance aspect was lacking. Tim Tebow rushed for only 2 yards and did not attempt a pass in a 30-9 loss to Miami. To be fair, Coach Rex Ryan only played the quarterback on a few downs. But should his low statistics continue, Tim Tebow could decide to abandon “Tebowing.”
Trademarks can be abandoned in a few ways. First, a person can discontinue use of the mark “with intent not to resume such use.” (Three consecutive years of nonuse is considered prima facie evidence of abandonment.) Second, the owner’s conduct will constitute abandonment if the conduct “causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark.”
One of the most famous trademark abandonment cases involved aspirin. In 1921, the Southern District of New York held that “Aspirin” became generic among consumers. This is great news for Jets’ quarterback fans. Although they may need to stop selling “Tebowing” shirts, there may be opportunities with aspirin. Aspirin shirts. Aspirin beer. Aspirin nachos anyone? Given the Jets record so far, these could be successful ventures.
*Stephen DeGrow is a second-year student at Wake Forest University School of Law and holds a Bachelor of Arts in Economics from Cornell University.