United States: Trademarks of varsity athletes: protecting the name, image and likeness rights of student-athletes
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NCAA varsity athletes must register their athlete brands now that they can take advantage of their name, image and likeness. Trademarks provide strong protections for the student-athlete NIL and facilitate future sponsorship and sponsorship opportunities.
Why can student-athletes now register their names, images and likenesses?
Effective July 1, 2021, the National Collegiate Athletic Association (NCAA) suspended its rules prohibiting college athletes from using their names, images and likenesses for commercial purposes. The suspension applies to all incoming and current student-athletes in all sports. Before the NCAA suspension, only a few states had laws allowing college athletes to engage in NIL activities despite the NCAA ban. Now, college athletes will not violate NCAA rules when engaging in NIL activities. Therefore, all students can proceed to brand their NIL without fear of retaliation from the NCAA.
The new NCAA policy advises college athletes to follow the NIL law of the jurisdiction of their respective schools, such as reporting NIL activities in accordance with state law and / or school requirements. The policy expressly states that students may use professional services for NIL activities. Currently, the NCAA is working with the federal government to develop national guidelines for the NIL activities of college athletes. An update will be posted on this blog when the policy or legislation is released.
What are the advantages for university athletes to register their NIL mark?
Registering an athlete’s trademark provides legal protection for their trademark and helps guard against counterfeiting and fraud. Registering a trademark with the United States Patent and Trademark Office (USPTO) is not required for students to earn money with their NIL, but it is suggested because registration comes with stronger rights nationally. These rights include the use of the ® symbol, the legal presumption of ownership and the ability to sue the mark in question in federal court. Additionally, these marks will be listed in the USPTO database, which alerts anyone seeking to register similar marks.
How can a student athlete mark their NIL?
Almost anything can be a brand if it tells consumers that the athlete is the source of a given service or good. Like professional athletes, student-athletes can now file with the USPTO for word mark protection for their nicknames or logos, including their likenesses. A mark can be a random design. For example, University of Wisconsin quarterback Graham Mertz has a design mark that he uses to represent his brand. The sooner athletes file their marks with the USPTO, the better the chance that their preferred brands will be available for registration.
To obtain federal registration, a mark must be used in commerce and classify goods or services. For example, if an athlete uses their brand to identify a social media account or posts in which they sponsor products, the brand should probably be filed in Class 35 – Advertising and Business. A trademark can be registered for more than one class, for an additional fee of $ 250 per class. Please note that if a trademark is unregisterable or incorrectly filed, the USPTO will not reimburse the registration fee. If student-athletes want to register trademarks and avoid losing their registration fees, they should consider contacting a trademark attorney for help navigating the process.
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Trademark counterfeiting: a kiss of death?
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