These days, athletes’ off-field personas seem to be just as important as their on-field skills. That’s why many of today’s emerging sports stars are protecting the nicknames and catchphrases that have made them famous.
After the Washington Nationals’ 19-year-old phenom Bryce Harper sent a mammoth home run deep into the stands at the Rogers Centre against the Toronto Blue Jays on June 12, a Canadian reporter asked if he would celebrate with a beer.
Harper is of legal age to consume alcohol in Canada, but the devout Mormon declined to answer the question. Instead, the world got a glimpse of what could possibly snowball into big payday for the youngster.
“That’s a clown question, bro,” Harper told the reporter.
And with that small, sarcastic quip came a world of marketing possibilities that would have any agent foaming at the mouth.
The following day, Harper registered a trademark for the phrase, and not long after, Under Armour announced it would be selling shirts touting the snappy line. Harper has a contract to wear Under Armour gear.
Shirts with the message “Don’t be a Clown Bro,” will go on sale Tuesday on the Baltimore-based athletic apparel company’s website, as well as through vendors in the Washington, D.C., area.
Harper’s business-related decision isn’t the first time an athlete has sought protection over intellectual property.
After introducing the nation to his fictitious alma mater, Baltimore Ravens linebacker Terrell Suggs trademarked the famous “Ball So Hard University.”
More recently, this year’s No. 1 overall pick in the NBA draft, Anthony Davis, trademarked the phrases “Fear the Brow,” and “Raise the Brow” in relation to his unibrow. Davis registered the lines before even setting foot onto the basketball court as a professional. As a standout forward/center at the University of Kentucky, Davis was selected by the New Orleans Hornets.
“What has happened to the sports industry is that it has become an extension of the entertainment industry,” said Ron Shapiro, counsel to the firm Shapiro Sher Guinot & Sandler, and sports agent to local stars including Cal Ripken Jr. and Brooks Robinson, as well as national names like Minnesota Twins’ catcher, and 2009 American League MVP, Joe Mauer.
Shapiro said he has seen many examples of players attempting to protect their image by registering for trademarks.
When Ripken was chasing Lou Gehrig’s streak of consecutive games played, protection for phrases that associated Ripken with “2131” and “Iron Man” were of high priority.
Boston Red Sox designated hitter David Ortiz, who isn’t a Shapiro client, has registered multiple phrases involving his “Big Papi” nickname since 2004. And when controversial slugger Manny Ramirez was traded to the Los Angeles Dodgers in 2008, he took advantage of fans calling the town “Mannywood.”
“Nicknames are something that describes the player,” Shapiro said. “I think it’s perfectly OK to protect that.”
While nicknames are acceptable to trademark in Shapiro’s mind, catchphrases are a little less favorable.
“I think it’s a fad trend,” he said. “It will be at its high point in the next few years, but not long term.”
For Harper, Shapiro sees the benefits of having a trademark for his “clown” phrase, but the lawyer said he wishes the young star would focus less on his wallet and more on his bat.
E. Scott Johnson, of the Intellectual Property Group at Ober|Kaler, said he doesn’t see a downside to athletes protecting their likenesses.
“They’re generating a lot of excitement and their persona is a brand,” Johnson said. “I don’t see it as something to take away from their accomplishments as athletes. They have to continue to do that or no one will care about their trademarks.”
Johnson sees the trend as a simple rise in the awareness of athletes and their representation.
“As time goes on, there’s more of a perception of a value of intellectual property,” he said.
In order to ensure rights over a name or phrase, athletes or celebrities must register it with the U.S. Patent and Trademark Office.
According to the USPTO, “a trademark is a brand name.” This means that registrations can include any word, name or symbol that is used to associate or distinguish one particular entity from another.
A trademarked moniker could not be used by a completely different company, for fear of confusing the public regarding a possible partnership.
Unless Harper gave permission, another business wishing to use the phrase would be blocked, due to its association with the young outfielder.
James B. Astrachan, of Astrachan Gunst Thomas Rubin PC, is an expert in trademark law.
“Celebrities have attempted to trademark their names for years,” said Astrachan. “You can only get a trademark from use.”
This rule means that if Harper wants the registration of his phrase to be accepted, he must use it in conjunction with a product apart from his play on the field — something many of his endorsement partners are likely to do.
With the trademark rights secured, Harper can now capitalize on all products that use the phrase.
While athletes or celebrities can attempt to claim sovereignty over their every feature, “nobody has a monopoly in their own trademark,” said Astrachan.
Public comments and mentions in the media are both examples where certain nicknames or catchphrases are available to be used freely, he said.
Astrachan said the main benefit of registering a trademark is that it builds an association with the athlete in the eyes of the public. It forms the catchphrase or nickname into a brand, and then allows the athlete to market the idea until it is no longer popular.
Harper “could make a lot of money,” Astrachan said. “If he’s a smart guy, his agent will create a merchandising world for him.”