Tim Tebow is many things. He is an athlete, an advocate, a Heisman trophy winner, and now it looks like he will be a trademark registration owner. A trademark application for the term “Tebowingg” recently survived the 30 day opposition period provided after a trademark publishes. The trademark application should proceed to registration, which will entitle XV Enterprises, a company solely owned by Tim Tebow, to the exclusive rights to use the mark “Tebowing” in commerce in connection with the sale of hats, shirts, and t-shirts.
Interested in filing your own “Tebowing” trademark application? Get in line. Various other “Tebowing” trademark applications are pending in a number of other classes. Tebow says his trademark attorney filed on his behalf not for financial gain, but “to just control how it’s used, make sure it’s used in the right way.” This makes a lot of sense because earlier this year several trademark applications for “Tebowing” were filed by someone else hoping to capitalize on the Tebow craze. The applications were rejected because they suggest a false connection with a living individual. The trademark office in its response to the applications stated:
“Registration is refused because the applied-for mark consists of or includes matter which may falsely suggest a connection with Tim Tebow. Although Tim Tebow is not connected with the goods and/or services provided by applicant under the applied-for mark, Tim Tebow is so famous that consumers would presume a connection.”
The third party filer for “Tebowing” filed for a trademark registration without a trademark attorney. Had he consulted an experienced trademark attorney before filing an application to register the “Tebowing” mark, he could have saved himself some money. When XV Enterprises submitted their applications, they had to include a disclaimer stating “The name(s), portrait(s), and/or signature(s) shown in the mark identifies “TIM TEBOW”, whose consent(s) to register is made of record.”
Registration of the “Tebowing” mark raises a couple of interesting trademark issues. One major point is that Tebow is not interested in using the mark for commercial purposes, but rather to prevent others from using it commercially. While this can be an important reason to file a trademark application, it is important to remember that trademark rights ultimately stem from use. If you plan to file a trademark application to maintain control over a mark, you must either be using the mark in commerce or at least have a bona fide intent to use the mark in commerce. One consideration in these types of situations is the requirement that trademarks actually be used in commerce before a trademark registration will be issued. If Tebow intends to keep the “Tebowing” mark, he will eventually have to show some actual use in commerce.
The second issue raised by this situation is the connection of the trademark with a living individual. Trademark law prevents an applicant from registering a trademark that the public would associate with a living individual unless the individual gives their consent. For example, one could not register the mark “Obama Bahama Pajamas” without the permission of President Obama because the public would immediately assume a connection to the President. In the Tebowing case, Tebow consented to registration of the mark by his company and satisfied that requirement.
Knowing how and when to file a trademark application is usually more complex than having a passion for a name and filing an application to register it. Trademark issues can arise in diverse and unsuspecting ways. Tim Tebow’s reason for filing a trademark was a reaction to the way others were using his name. If you are in business, it’s a good idea to consider trademark implications for your brand.