Jeremy Lin’s battles have been well documented. He led his high school to a state title his senior year, and yet he received no athletic scholarship offers out of high school. After going undrafted from Harvard, Lin bounced around a few NBA teams before finding himself a spot in the starting lineup of the ailing Knicks. And from there, a sensation was born, the birth of “Linsanity”!
Jeremy Lin’s recent successes on the basketball court may ultimately lead him into a battle in another court. On February 13, 2012, Lin filed a trademark application for the term “Linsanity” with the U.S. Patent and Trademark Office. The problem is that Lin’s filing came six days after Yenchin Chang, a 35-year-old California resident with no ties to Lin, became the first to apply for a “Linsanity” trademark. Chang said that he filed his application because, like many others, he “wanted to be part of the excitement.” A second filing was also made on February 9 by Andrew Slayton, who coached at Lin’s high school. Both applications for “Linsanity” have proceeded quickly through the trademark examination process, as the Trademark Office’s database shows that both applications have already been assigned to an examining attorney.
The fight for the “Linsanity” trademark is fierce, as many attempt to jump on the bandwagon to capitalize on Lin’s remarkable story. In fact, Lin’s emergence has translated into huge sales thus far. ESPN is reporting that Lin’s No. 17 Jersey has been the number one selling jersey since February 4th, according to the NBA. In addition, Yahoo! Sports recently announced that Jeremy Lin is the world’s fastest-growing athlete brand worth approximately $14 million. So far, only Slayton’s application is based on use of the “Linsanity” trademark in commerce, as Mr. Slayton, who owns the domain names Linsanity.com and thejeremylinshow.com, has already begun selling Lin merchandise. The remaining applications, including both Chang’s and Lin’s, are only based on a bona fide intent-to-use the mark in commerce.
Lin’s predicament is reminiscent of the rush to trademark catchphrases coined by Charlie Sheen last year, including by Sheen himself. The law firm of Mintz Levin recently did a comparison of Lin’s situation with that of Sheen’s from last year. The firm noted that when faced with trademark applications from Sheen and others for phrases such as “WINNING”, the Trademark Office refused registration based on Section 2(a) of the Lanham Act. Under Section 2(a), registration of a mark may be barred if the mark is the same as, or a close approximation of, the name or identity of another person (that is not the applicant) and points uniquely and unmistakably to that person. In Sheen’s case, the Trademark Office refused registration on the grounds that the applied-for mark “consists or includes matter which may falsely suggest a connection with the actor Charlie Sheen.” In Lin’s case, Mintz Levin noted that given Lin’s recent explosion, his fame is such that consumers may presume that Chang’s and Slayton’s “Linsanity” mark and associated goods are connected with Lin. Similarly, the Trademark Office may refuse registration under Section 2(c), which is a bar to registration of a designation that identifies a particular living individual absent written consent. Section 1052(c) of Article 15 the U.S. Code, which protects individuals’ privacy and publicity rights, also specifically prohibits the registration of a trademark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” Given the fact that Lin is unlikely to provide the required consent, the pending applications may ultimately be doomed.
Checking on the status of Sheen’s trademark applications, more than half of them have subsequently been abandoned. As for Lin’s case, it remains to be seen whether trademark applications for “Linsanity” will suffer the same fate, or whether the “Linsanity” phenomenon truly has staying power. What is clear, for the reasons articulated above, is that Lin appears well positioned to protect his trademark rights.