A DISCUSSION OF LAW AND JOURNALISM

Stop the Presses — and Continue Tebowing

Tebowing

By Meghan Lalonde

After scoring touchdowns, then Denver Bronco Tim Tebow would drop to one knee, clenched fist to his forehead, in a moment of spiritual communion giving thanks to God. This became quite popular. (He hasn’t scored yet as a Jet, so we haven’t seen him do it this season). Celebrities did it. Other athletes did it. Two New York high school students were suspended because they wouldn’t stop doing it in crowded hallways.

And so Mr. Tebow applied for a trademark on “Tebowing” – not as a moneymaking scheme but so that it wouldn’t be misused. The trademark was just approved.

The Associated Press reported the story, opening with, “Dropping to a knee like Tim Tebow might cost you now.” Though it may have been intended as a joke (and we can’t be sure it was), it took on the mantle of truth, fast.  ESPN, the New York Post, Yahoo! Sports, and CBS Sports (in addition to just about every other national network) followed in the AP’s misguided footsteps.

Because the fact is, Tim Tebow didn’t trademark the gesture – he trademarked “Tebowing” – a word, and the variation – “TEBOWING.”

Kudos to Lowering the Bar for getting the law right: physical acts simply can’t be trademarked. And how can we be sure? By looking at his trademark applications. They’re all for the words “Tebowing” and a variation – “TEBOWING” – the name given to his signature pose, not the pose itself.

A quick search of the United States Patent and Trademark Office (USPTO) shows that seven trademarks were granted to Mr. Tebow’s marketing company, XV Enterprises LLC, for the Tebowing used in association with the following categories of goods and services: hats, shirts, jewelry, paper goods and products of just about any kind, educational services, sporting goods and apparel, men’s, women’s, and children’s clothing, and DVD and video recordings.

No mention of the actual physical movement.

That’s because the Lanham Act, otherwise known as the Trademark Act, defines trademarks as words, phrases, logos and symbols that are used by producers to identify their goods.

Shapes, sounds, fragrances, and colors (like Tiffany Blue) can also be trademarked, as can logos containing images. Mr. Tebow didn’t file for any such thing. An illustration of the pose would have needed to be included if that were the case – and it wasn’t.

Joshua Blank, an attorney at a multinational media company and adjunct professor at New York Law School, was amazed this morning at the media’s flubbing a non-hard-to-understand issue.  “Nobody’s paying attention if this is what they’re reporting,” he said.

Think about it. If the pose was now protected by trademark law, other signature sports celebrations like Victor Cruz’s salsa dance and other iconic moves like Michael Jackson’s moonwalk would have been trademarked long ago.

So for now, we’re all free to continue doing our best impressions. Including this little girl. Hallelujah.

The media’s been reporting that Mr. Tebow can only maintain possession of the mark if he uses Tebowing for financial gain.

Mr. Tebow has stated that if Tebowing does end up making some money, he’ll donate the proceeds to his Tim Tebow Foundation, a charity. That’s probably enough to qualify as being used in commerce which is all that trademark law requires.

UPDATE, October 26: Marty Schwimmer, trademark guru and author of The Trademark Blog, points out that under the Madrid Agreement there is in fact a trademark for a physical motion – it consists of a hand making a sort of ‘thumbs up’ gesture.

He also points out that a motion picture of a physical movement can be (and has been) trademarked, like the MGM lion and the TriStar Pegasus.

Comments

3 Comments »

3 Responses

  1. Ryan Morrison says:

    Excellent story! Great to see someone who understands the basics of intellectual property law actually reporting on this. I’ve seen headlines that Tebow patented his trademark. These are not the same things! Excellent work Ms. Lalonde.

  2. Jasper Folkman says:

    What’s unbelievable is that all these other media outlets straight up got it wrong.I don’t understand why nobody’s reporting this. It’s hysterical.

  3. Dr. Arbuthnot says:

    Not the first time that LASIS has had to correct Big Media. May you be blessed with a thousand years.

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