Jeremy Lin at least thinks so. In the course of over one week, Jeremy Lin transformed from a bench warmer to the most exciting basketball player in the NBA. In just a few games, Jeremy Lin went from sleeping on his brother’s couch with an uncertain future with the New York Knicks, to a potential $150 million asset to the Knicks by next season. The phenomenon of Jeremy’s rise, now known as “Linsanity,” has swept its way across the NBA and the world. Unfortunately, “Linsanity” will also possibly find its way sweeping into a US courtroom soon.
Immediately after Jeremy Lin found his way into the Knicks lineup, two applications were filed with the U.S. Patent & Trademark Office to register the trademark “Linsanity.” The first applicant, Michael Yenchin Chang, filed his application on February 7 to trademark “Linsanity” for use with sports apparel. Mr. Chang is a California businessman, who said he would sell the trademark to Jeremy Lin, but he just wanted to be part of the excitement. The second applicant, Andrew Slayton, could be more problematic for Jeremy Lin. Slayton is a volunteer high school basketball coach and has operated the website www.linsanity.com since 2010 selling unofficial Jeremy Linn sports apparel. Jeremy Lin did not file his trademark application for the term “Linsanity” until four days later.
Importantly, it is not necessary to currently be using the term in order to file a trademark application. An “intent to use” trademark application allows an applicant to file a trademark that it intends to use in the future, but is currently not in use. The “intent to use” applicant can then acquire senior trademark rights once trademark matures to registration, which requires using the trademark in interstate commerce. Chang filed an “intent to use” application.
However, it is important to note, that a trademark registration is not the only method to acquire trademark rights. Under common law, the first person to use a mark in commerce to sell goods or services has a superior right to the trademark. This is the case of Andrew Slayton who has been using the term “Linsanity” to sell sports t-shirts and apparel since 2010.
Nonetheless, this does not leave Jeremy Lin without any claim to ownership of the “Linsanity” trademark. Under federal trademark law, if a term is closely related to a person’s name then the applicant must obtain permission from the person before using the trademark. In other words, a trademark applicant cannot register a trademark that falsely draws a connection with a public figure’s name or identity. The issue for Jeremy Lin, is whether he will be able to establish that the term “Linsanity” is closely enough related to his name and identity.
There are currently 10 total applications pending at U.S. Patent & Trademark Office for the trademark “Linsanity”—ranging for use with sports apparel to eye glasses. Trademark applications take approximately 3 months to be reviewed. Until then, it will be unclear who owns the intellectual property rights to “Linsanity.”
If you have further questions on trademark and copyright issues, please contact the lawyers at the law firm of Basyuk & Klaproth.
