Linsanity

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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11 Responses

  1. No one. Show me a business that has actual consumer goodwill built up around a use of the phrase as a source identifier, and I’ll change my mind. But right now, it’s unowned.

  2. Jake Linford says:

    It seems to me the closest analogy might be nickname cases like Coca-Cola Co. v. Busch, 44 F. Supp. 405 (D. Pa. 1942). There, consumers started calling Coca-Cola by the nickname Coke, and the Coca-Cola Co. was granted relief against KOKE-UP for soda. So what is the business to which we might append the LINSANITY as a mark?

    The Knicks already have some consumer goodwill built up around Jeremy Lin’s athletic performances as a product on the basketball court. There, Linsanity could be a service mark for basketball games. The NBA might have already developed some consumer goodwill in jersey sales. Apparently, the Lin jersey is the number one seller for the Association online. There, Linsanity could be a trademark for basketball jerseys. Lin, of course, is in business for himself, and will start getting serious advertising deals if he hasn’t already. Linsanity could be a service mark for his advertising activities, although that seems like the biggest stretch. Folks are electrified by his play, not by his ability to read ad copy.

    For any of these businesses, Linsanity could be a nickname that consumers are appending to the business. If all of them could be the target, that suggests Linsanity is a contested term. The common denominator is Lin himself, so I’m more inclined to think if anyone can use it to designate goods or services in the marketplace, it should be Lin himself.

  3. This is making me wonder whether there might be a way to harmonize trademark and right of publicity at their border. Perhaps the right of publicity plays a role akin to the one that common-law copyright did for unpublished works before the 1976 Copyright Act?

  4. Ken Rhodes says:

    Pat Riley registered “Three-peat” as a trademark in anticipation of the Lakers winning their third straight championship. They didn’t, but later when the Bulls won three in a row Riley still owned the phrase and made money off it.

    According to Wikipedia, “The trademark registration for three-peat has been challenged over the years by those who argue that the term has become too generic in its usage for the trademark to continue to be applicable. However, such arguments have yet to succeed, with the registration continuing to be upheld by the United States Patent and Trademark Office as recently as 2001, in the case of Christopher Wade v. Riles & Co.”

    So apparently the answer to the question you asked is a question: “Who owns it? Well, who has registered it?”

    And if nobody has, then somebody ought to hurry down to the Patent and Trademark Office tomorrow morning.

  5. Dave says:

    A quick search of TESS reveals that, as of Feb. 9, 2012, the phrase Linsanity has been registered as a mark for athletic apparel. Claimed first use was in 2010. Another individual registered the phrase LINsanity for a variety of goods on Feb. 7, 2012.

  6. Dave says:

    I should note that both have recently been assigned to an examiner at the USPTO.

  7. Mark McKenna says:

    James – I think the right of publicity is the right instinct. My guess would be that the answer to “who owns it” is Jeremy Lin, if anyone. I think the applications to register will be denied because the Trademark Office will regard this as “having a connection to” Lin. And the right of publicity doesn’t have a use in commerce requirement – it only requires that people would associate the phrase with Lin. So, my answer is “Jeremy Lin.”

  8. Howard Wasserman says:

    Did Riley make money off it? As I recall, mechandisers found other ways to mark the 3 without using the actual phrase. I had a hat with bullhorns turned on the side to look like a “3”.

  9. Dave says:

    I’m with Mark. Refuals to register based on 15 USC 1052(2)(c), which in turn is based on the idea of right of publicity. It prohibits registration of an individual’s name (without his consent), which according to TTAB decisions includes nicknames. So registration will likely be denied on that basis, particularly in light of the specimen provided to the USPTO, which contains Knicks’ colors.

  10. Dave says:

    I’m with Mark. Refusals to register based on 15 USC 1052(2)(c), which, in turn, is based on the idea of right of publicity/privacy. It prohibits registration of an individual’s name (without his consent), which according to TTAB decisions includes nicknames. So registration will likely be denied on that basis, particularly in light of the specimen provided to the USPTO, which contains Knicks’ colors.

  11. Jake Linford says:

    I think the analysis offered by Mark and Dave also applies to the recent denials of applications to register Blue Ivy Carter trademarks.