Think about some of your favorite brands, and how each is recognized. Everyone knows what a WHOPPER is and who sells it. A very particular shade of blue has been associated with TIFFANY because of the boxes the jewelry is packaged in. And speaking of packages, everyone knows who delivers your packages while wearing a particular shade of BROWN and driving a dark BROWN delivery truck. Even smells can be a trademark- a whiff of sweet cinnamon in a mall or airport makes most people crave a CINNABON. The U.S. Trademark Act, or the Lanham Act, defines a trademark as “a word, phrase, symbol, or design, or a combination thereof,” that identifies and distinguishes the source of the goods of one party from those of another. Words, logos, slogans, color schemes, smells, sounds, and any other unique symbol identifying the source of the product can be registered with the U.S. Patent and Trademark Office (“USPTO”).
The key to a “mark” is its distinctiveness in the minds of consumers. This distinctiveness may have always been present (“inherently distinctive”) or acquired over time as the public became familiar with it (“acquired distinctiveness). Celebrities can be extremely powerful brands. Public attention and fame can turn a celebrity into a distinctive and immediately recognizable brand. Taylor Swift, one of the world’s most recognizable brands, is boosting the brand of her rumored new boyfriend. People who have never watched a football game in their life now know who Travis Kelce is and the union of these two powerful celebrity brands is quickly becoming its own well-known, distinctive brand. Travis Kelce recently filed five applications to register marks, namely: his own name, TRAVIS KELCE; “FLIGHT 87”, which references his football jersey number; his signature catch phrase “ALRIGHT NAH”; his Instagram name “KILLA TRAV;” and “KELCE’S KRUNCH,” which could be used to build on a cereal collaboration Kelce had with Hy-vee.
So, will the USPTO register Travis’ name and his catchphrases?
These marks Kelce just filed are not instantly “registered” and fully protected. Once an application to register a mark is filed, it is assigned to an examining attorney at the USPTO, who takes plenty of time to thoroughly assess the mark, how the application shows the mark being used and how the mark is recognized by consumers. This examining attorney then determines whether the mark is adequately functioning as an identifier of the source of the goods or services it identifies and, if so, the mark is allowed to be registered.
The USPTO has a number of rules and regulations specifying which marks can obtain a registration. USPTO examiners will not grant trademark protection to any mark that may be confusingly similar to a mark that has already made it through the application process and has been registered with the USPTO.
The mark has to be distinctive as well. The more unique or “distinctive” a trademark is in relation to the goods/services, the more likely it is to be granted registration by the USPTO. Commonly used, generic, or descriptive words and phrases will not be granted trademark protection because such marks are perceived as describing the goods/services which with they are used and not as identifying the source of those goods/services. Surnames are also usually not granted registration unless becoming distinctive, like MCDONALDS, because surnames should remain available for use as a mark by people who have that surname.
Wait- Travis can’t trademark his own name? And doesn’t Taylor have a trademark for her name?
A person’s whole name, nickname or insignia that clearly references a real person’s identity can only be registered if the person identified expressly consents to the registration. Travis can of course register his own name if his express consent to do so is clearly in the record. Taylor Swift has already registered her name and a number of phrases and song titles associated with her and her personal brand. Whether or not you appreciate her music, everyone can agree that Taylor Swift is something special, distinctive, and readily recognized. Taylor has capitalized on this and turned herself into a brand, registering her name, initials, signature, phrases like “this sick beat” and “nice to meet you, where you been,” and many song titles, including “Shake It Off” and “We Are Never Ever Getting Back Together.”
However, distinctiveness and popularity of these marks is not enough. Whether or not Travis’ marks will be registered depends on whether or not he can show that his name refers to the source of a product or service. As well, marks need to be “commercialized,” meaning associated with a product or service in U.S. Commerce. This means applying marks to products like t-shirts and mugs and goods related to the celebrity’s craft, for example a microphone for one of Taylor’s marks, or a football in the case of Travis’ marks.
It is important for superstar celebrities, like Taylor Swift and Travis Kelce and especially the two of them together, to recognize the distinctiveness of their names as marks and likenesses and to protect the strong power of these identities to identify goods and services, just like most businesses do, by federally registering these names and likenesses as marks. Consider working with an experienced trademark attorney to determine which aspects of your name or likeness should be considered for trademark registration because of its popularity and commercialization on various goods and services.
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