Businesses - Branding and Trademarks

There are at least a couple of different schools of thought regarding branding, much of it divorced from the question of trademark protection.  For example, there are several sources that advise business owners to consider naming or labeling a product with a descriptive title (e.g., "Discount Furniture"), but this ignores the trouble lurking for the business down-the-road. In the hierarchy of trademark protection, fanciful (coined/invented) marks enjoy the greatest strength and protection against conflicting use(s) and/or attack, followed by arbitrary (no connection between term and product), and suggestive (suggestive of a characteristic without overtly describing the product).  Any term/phrase falling within these three categories are considered strong marks.

On the opposite end of the hierarchy are generic terms - words/phrases that defines the good (or service), such as escalator or elevator.

And then there is the category of descriptive marks.  Not quite generic and not quite suggestive.  Descriptive marks are not inherently distinctive and require extensive use for some period of time before acquired distinctiveness (secondary meaning) builds that allows the former descriptive mark to be eligible for federal registration.

While the temptation is strong to label a product or service in a descriptive way, since most consumers would understand the use of the term with the product in this way, this approach is wrong-headed and a bit reckless with a business that one is using to generate profit.  Failing to devise a word/term/phrase that is at least suggestive runs the risk of being unable to federally register the mark, making enforcement of such a mark problematic, along with not realizing the full-breadth of protections and advantages that registration allows under federal law.

Alternatively, with sufficient time, thought, and consideration, a mark that is at least suggestive will open up all the doors to the entrepreneur: utilizing an identifiable and memorable brand;  using a mark that is capable of federal registration; and possessing a mark that is poised to grow and obtain increasing goodwill from consumers that adds value to the business as an on-going venture and as a potential target for sell, acquisition, or strategic alliance.

The Earnhardt Squabble - Family Names & Trademark Usage

One of the more interesting aspects of observing trademark disputes is the sometimes thorny issues that arise regarding the use of the family name (surname) as a trademark and the bad feelings that tend to ensue from one member of the family trying to exclude use(s) by other family members.  Equally as fascinating is the public's reaction to such action(s) and the often misunderstood nature of trademarks and trademark usage, esp. of surnames.  Take for example the most recent case involving a well-known surname - the surviving family of former NASCAR champion Dale Earnhardt (Sr.). Dale Earnhardt's widow (Teresa) is the CEO of Dale Earnhardt, Inc. (aka "DEI"), formerly a motor racing company, and as of now the owner of all name, image, likeness, and general trademarks (registered and unregistered) of Dale Earnhardt.  This includes six federal registrations for variants of "DALE EARNHARDT", "E", and "THE DALE EARNHARDT FOUNDATION". 

Teresa Earnhardt is the step-mother to:  oldest Earnhardt son, Kerry and younger Earnhardt son, Dale, Jr. (with Kerry and Dale, Jr. being half-brothers).  As former and current members of the NASCAR racing profession, both Kerry and Dale, Jr. have separately registered trademarks on their names ("KERRY EARNHARDT" and "DALE EARNHARDT, JR.").  Each set of marks are separately owned by the respective businesses that each half-brother owns.

But in his post-racing ventures,  Kerry has upset the apple-cart.  First, Kerry filed an intent-to-use (ITU) application for the mark "EARNHARDT OUTDOORS" in connection with his appearances on outdoor related television and video-recorded programming.  This mark successfully cleared opposition, and was converted to an in-use application for registration about two years after filing.  Next, Kerry filed an ITU application for "EARNHARDT COLLECTION" related to home building and home decor.  This mark did not clear opposition - Teresa Earnhardt and DEI filed a notice of opposition to prevent the registration of this mark primarily on the grounds that it was likely to cause confusion with the several registered and unregistered marks related to Dale Earnhardt and owned/used by DEI.  Thereafter, T.E. and DEI filed a notice of cancellation against "EARNHARDT OUTDOORS" on similar grounds.  The separate opposition and cancellation proceedings were consolidated.

The Trademark Trial and Appeal Board (TTAB) determined that although the marks are clearly similar in sight, sound, and connotation, there is no likelihood of confusion because the primary goods/services of the respective sets of marks were directed to (a) racing memorabilia (for DEI's marks) and (b) custom home construction and home decor (for Kerry Earnhardt's marks), with no likelihood of overlap or bridging the gap.

As often happens, T.E. and DEI have appealed the administrative (TTAB) ruling to the federal courts for review.  THIS is the action that caught the attention of journos, racing fans, and lay-people.  DEI is well-within its right to appeal the decision, esp. if there is a good-faith basis for believing that the TTAB committed an error on the evidence or on the law.  Based on the paper-record available, DEI is unlikely to win on appeal largely based on the dissimilarity in the goods/services provided.  Stated more to the lay-person's understanding:  it is unlikely that the consuming public is going to confuse Dale Earnhardt racing memorabilia with home decor and home construction of the "Earnhardt Collection".

However, it is interesting to note the reporting, the public reaction, and today's reported on-record reaction from Dale, Jr (in support of half-brother Kerry).  The reports have generally come within the vein of:  Teresa is trying to stop Kerry from using his (last) name.  

That's only somewhat true - DEI is trying to stop the federal registration of someone incorporating "Earnhardt" into a different mark.  Preventing the registration is only part of the process in stopping the actual trademark use.  Much like the misconception that if the Washington Redskins ultimately lose their federal registrations then the organization will lose the right to use the marks in commerce, even if Kerry Earnhardt's registration is blocked by the USPTO, DEI will have to sue for infringement and/or dilution and get injunctive relief to stop Kerry's usage of "EARNHARDT COLLECTION".

This "family" squabble is one of several over the years.  A relatively recent family squabble arose between members of the rock-band "Van Halen" and one of the ex-wives of drummer Alex Van Halen (Kelly).

ELVH, Inc. is the band-owned company that owns the intellectual property related to the rock band "Van Halen" (ELVH is the initials of guitarist Edward (Lodewijk) Van Halen), including the registered and unregistered marks for the name "VAN HALEN".  After Alex and Kelly Van Halen divorced in 1996, the former Mrs. Van Halen retained her married name and started an interior design and construction company under her former married name "Kelly Van Halen".   As one might expect, litigation ensued.

In Oct. 2013, ELVH, Inc. sued Kelly Van Halen for trademark infringement.  In Jan. 2015, the parties settled their dispute, with Kelly Van Halen able to continue using this name along with additional qualification (e.g., "Design Originals by Kelly Van Halen").  Had that matter continued to trial, it was destined for a similar result as the opposition/cancellation pursued by DEI - no likelihood of confusion based on entirely different goods/services offered.  Fortunately, cooler heads finally prevailed.  We'll see if the same ultimately holds for the Earnhardt's squabble.

Washington Redskins Legal Position Bolstered

As many readers have noticed, this blog has taken several opportunities to provide commentary on the continuing sage of the registered trademarks of the Washington Redskins professional football organization.  Just last month, this blog noted a similar alleged-disparagement case ("THE SLANTS") winding its way through the appeals process with a pending writ of certiorari filed with SCOTUS.  Today, the Washington Post published a new poll it conducted revealing that a significant majority of self-identifying Native Americans do not find the use of "Washington Redskins" or "Redskins" disparaging to the group.  Although this is an internally-commissioned poll by WaPo, the significance of the results could signal the final tolls of the bell for this decades-long trademark challenge. Recall, in 1992, Susan Harjo filed a petition with the USPTO to cancel six registered trademarks owned by the Washington Redskins football organization.  After multiple appeals within and without the administrative agency, the original challenge was nixed based on the legal theory that laches (waiting too long) prohibited the challengers from continuing with the cancellation proceeding in 2005, and mercifully buried by SCOTUS denying to hear the appeal in 2009.  Yet, as the Harjo petition was pending before SCOTUS, a new round of challenges to the same six registrations (on behalf of Amanda Blackhorse and five other individuals).  The Blackhorse challenge will reach its first-decade if it lasts until August 2016.

What threatens the viability of the Blackhorse challenge is the newly published WaPo poll, which reveals that of the 504 respondents self-identifying as Native Americans, 90% are not bothered by the use of "Redskins" by the Washington football organization, 1% offered no opinion, while the remaining 9% find the usage "offensive".  Recall the standard for appropriately holding that a term is "disparaging" is that it is deemed disparaging of a "substantial composite" of the identified group.  While there are no bright-line formulas for determining what is or is not a "substantial composite", a total of 9% finding the term(s) and/or uses "offensive" hardly seems to rise to the level of "substantial composite".

Something that gets a bit lost in the noise of these challenges is that this is the same problem that Harjo had.  Neither Harjo (nor apparently Blackhorse) can marshal the evidence that demonstrates a "substantial composite" of the group find the term offensive.  As noted in an ESPN article, it seems the average person finds the terms more offensive than members of the targeted-group - which is probably a bigger comment on the psychological/sociological issues within our progressively PC society.  Yet, even that evidence has historically favored the Washington organization, as the vast majority of people associate "Washington Redskins" and "Redskins" as identifying the NFL team, with hardly any data indicating such uses are of actual people/persons.

Between the publication of the WaPo poll, the trend in "THE SLANTS" case, as well as general first amendment and trademark examination principles, it appears the "Redskins" matter may reach a finality in favor of the club and its registrations.  Although I never underestimate the federal judiciary to surprise (esp. the intellectual property challenged members of SCOTUS).

CNN Money Botches Redskins' TM Case

After a promising headline ("Redskins ask Supreme Court to hear trademark case"), CNNMoney's description of the legal status and issues in that matter leave a lot to be desired.  While I don't expect laser-like precision from lay reporters, this particular article is light on accuracy. For example, the article states:

The Redskins were told by the U.S. Patent and Trademark Office in June 2014 that the team could not trademark its name because federal law prohibits the registration of anything "scandalous, immoral, or disparaging."

I get what the writer is trying to say - and I'm not one to pick nits with lay reporters - but this is really misleading.  The USPTO canceled six registered trademarks based on the (federal trademark law) Lanham Act's section 2(a) provision against registering a mark or marks that may "disparage" others.  While the federal trademark law does empower the USPTO to prevent registration of such marks, that does not mean that the team cannot "trademark" the "name".  The posture of the Washington Redskins' case is that six registrations of the many marks that the organization possess (either registered or unregistered) have been cancelled from the federal principal register; legally, the organization may (and still does) use the six marks as it has before, since the cancellation of the registered marks has no impact on the usage of the marks in commerce.

As egregious is this sentence:

Revoking its trademark does not mean the Redskins won't be able to keep its name, but losing trademark protection would allow anyone to sell goods with the Redskins name or logo without paying the league as they now must do.

Despite the cancellation of the six registered marks (pending the likely consolidation of appeals / writ for certiorari of the "REDSKINS" and "THE SLANTS" cases), the organization has NOT lost trademark protection.  In fact, the value derived from a trademark springs from the use of the trademark, not the registration.  And registration is not a requirement (unlike copyright) for adopting, using, and enforcing trademark rights. Accordingly, the organization has not lost any of its substantive trademark rights and protections, and any would-be business thinking that it can pilfer these marks for t-shirt or apparel applications would quickly find itself in the cross-hairs of a trademark infringement suit.

In particular, the Lanham Act specifically sets out that unregistered trademarks are protected from the likelihood of source confusion (section 43(a)) in a manner very similar to the protections extended to registered marks.  Although the procedure and proof required to demonstrate to a court/jury that a mark enjoys such protection is slightly higher than if the mark was registered, for lack of a government issued certificate that carries some weight, if adoption, usage, maintenance, and overall-ownership is so demonstrated, the analysis for the likelihood of source confusion is nearly identical whether the mark is registered or unregistered (with some variants between circuits on the number of factors considered in a likelihood of confusion analysis).

Kudos to CNNMoney for revealing that the football organization is seeking a consolidation of its case with "THE SLANTS"; the impact on the organization's appeal to the Fourth Circuit Court of Appeals (pending) is unclear, though.

Prince - More Than a Symbol (Coda)

As the founder and main creative engine of Paisley Park Enterprises, Prince was in the possession of approximately 10 registered trademarks still active and maintained at the time of death (the total exceeds 50 when including formerly used but now "dead" or inactive marks).  While "PRINCE" and "NPG" (or New Power Generation) are well known monikers, the "symbol" may be the most well-known of Prince's many marks, which is an interesting juxtaposition given that he later adopted the symbol as his persona as a means to divorce the artist formerly known as "Prince" from the legal and business stranglehold of Warner Bros. records. One of the first uses of this icon was in the body shape of a Prince guitar.  Later, this symbol was the subject of several trademark applications that matured into federally registered trademarks for a variety of goods and services.  Those four registered marks continue in use.

Despite the extremely symbolic nature that this icon came to represent, a symbol that was used to publicly draw attention to the IP ownership and control issues faced by many recording artists, it is rather coincidental that a musician driven to haggle with his record company for a decade-plus over his creations was later pitted against his fans with the same control issues over his work.  In the advent of the world wide web and the ability to electronically save and share data, at first it was the Napsters, Gnutellas, Kazaas, Aimsters, and the various peer-to-peer file-sharing platforms and then the multi-media platform of YouTube (and other lesser platforms) that surely gave the artist and his team headaches - a digital version of the carnival game "Whack-a-Mole".

Although many of the p-2-p platforms have diminished in popularity, YouTube is a different animal - and Prince was no shrinking violet when it came to the Digital Millennium Copyright Act's "take down notice" procedure.  If popular press is to be believed, at the least, it seemed as though Prince was the main musical bully scouring YouTube for his content popping up in whatever video-based work, regardless of how imaginative or trans-formative.  Before his death, scant-little Prince content was available on YouTube; as soon as someone was brave enough to post any back-catalog work, a DMCA take down notice quickly turned that video link into a snowy-video.

Even more noticeable and interesting in the days since his death - YouTube is now littered with Prince material.  Whether those with monetary interests in the Prince catalog allow this unauthorized usage to continue unabated will be interesting to observe.  It is rather ironic that the very platform that the artist resisted in using for sharing his back-catalog is now being used to shower the artist with admiration.  However, it would hardly be surprising to learn that Prince envisioned this very thing.

Let's also hope that the man engaged in the appropriate forms of estate planning - and that those left with the responsibility of handling his estate for the foreseeable future prevent unauthorized exploitation of his name, image, and likeness.  As so many estates of celebrities have learned, there is no shortage of free-riders willing to use the image of Elvis, Sinatra, and so many others to peddle sketchy merchandise.

RIP.  Thank you for the music.

Group Disparagement Redux - The Slants & The Skins

Last year, this author discussed the decades-long battle that the NFL's Washington Redskins has waged against opposition to the continuing (and future) registration of several trademarks in its possession (here and here).  In those posts, this author high-lighted the ill-founded logic used in the Federal District Court judge's opinion (as overlapping with the TTAB decision at the USPTO).  In particular, when viewed in context, as is required of trademark usage in most-all litigation settings, the six trademarks at issue cannot reasonably be said to refer to a race or ethnicity of people, much less in a disparaging way that warrants cancellation of the marks under section 2(a) of the Lanham Act. In more recent months, the Court of Appeals for the Federal Circuit (CAFC) reversed the Trademark Trial and Appeal Board (TTAB) and its refusal to register the term "THE SLANTS" as used in association with the music services of an Asian-American band of the same name from Portland, OR.  In essence, the en banc panel of the CAFC (9 of 12 judges) determined that section 2(a) was an unconstitutional content restriction on free-speech. As a reminder, section 2(a) is the provision relied upon by challengers (over the years) to the Washington Redskins' various registrations.  Not surprisingly, the USPTO has appealed the decision in "THE SLANTS" case and awaits word whether the US Supreme Court will grant certiorari and attempt to resolve this matter.

Notably, in its petition for writ of certiorari, the USPTO essentially argues that section 2(a) of the Lanham Act does not restrict free speech by refusing to register marks that "disparage" people or groups but instead is a lawful criteria for eligibility on the federal trademark register within Congress' power.  The petition is well organized and argued, and references several seemingly favorable federal court cases in support of a very nuanced argument.

Whether the US Supreme Court will grant cert (and render a meaningful decision) is subject to considerable conjecture.  Despite the fine pedigree of the Supreme Court justices, many practicing intellectual property attorneys will bemoan the decisions of the Supreme Court on patent, copyright, and trademark cases.  Since this is being presented as a First Amendment challenge within a trademark context, there is a good likelihood that the Court will grant cert - but the ideological divide of the court will likely rear its head and result in a 4-4 split and the CAFC's en banc decision will stand until the next opportunity.

Whether the CAFC's decision should stand is a matter I will have to address in a future post.

The Washington Redskins Trademark Controversy - Part II

In part I, this author briefly discussed the recent decision by District Court Judge Gerald Lee (E.D. Va.) that independently agreed (under the statute's de novo review required by a district court) with the USPTO's Trademark Trial and Appeal Board's (TTAB) decision to cancel six registered trademarks for the NFL's Washington Redskin franchise.  In that entry, this author stated disagreement with both recent opinions, but without much analysis, saving the beginning of that discussion for this and future entries. As mentioned in the previous post, and although pilfered from John Adams and the Massachusetts Constitution (1780) and oft-applied to the Union that soon followed (1787), if this republic is a government of laws and not of men, and if the consent of the governed demands clearly written and applied laws and not the unpredictable will of the few, then these recent trademark decisions are but two of a growing list of decisions (and laws) violating these bedrock principles. 

To be clear, Judge Lee clarified certain issues that have been incorrectly conflated with the issues in this case (and the legacy case of Harjo).  For example, Judge Lee made it clear that it is the trademark registrations and not the trademarks that are at issue.  Rather, the statutory provision asserted (15 USC Sect. 1052(a) - "Sect. 2(a)") only allows for cancellation of the registration, not prohibition of use in commerce.  Neither the TTAB nor the District Court (in this instance) can prohibit the use of the marks despite any cancellation that may transpire.

Moreover, Judge Lee correctly pointed out (to anyone understanding and paying attention) that not only can the NFL franchise continue to use the marks in commerce despite any cancellation(s), the Lanham (trademark) Act allows a party to sue for infringement of its unregistered trademarks (15 USC Sect. 1125(a) - "Sect. 43(a)").  Therefore, despite the political and legal hand-wringing that continues over this matter, any speculated termination of the Washington Redskins trademarks is premature and highly exaggerated.

Now for the substance of Judge Lee's decision; as a preliminary matter, I am reserving comment on the constitutional questions for a future time.  IMO, the constitutional arguments are nuanced and deserving of considerable thought before comment.  Nor will I address the laches (unreasonable delay in pursuing suit) issue at this time.

Judge Lee's order was based on motions for (and opposing) summary judgment, which requires that there be no genuine issue of material fact and the movant is entitled to judgment as a matter of law (e.g., Fed. R. Civ. Pro. 56(a)).  IMO, this is problematic for several reasons.  First, to the question of whether a particular trademark has disparaging capabilities to a group of individuals, the USPTO asks: (1) is the mark understood as referring to an identifiable group of people? and (2) may that reference be perceived as disparaging to a substantial representation of that group?  Judge Lee answers:

[. . .] the record evidence shows that the term "redskin" in the context of Native Americans and during the relevant time period, was offensive and one that "may disparage" a substantial composite of Native Americans, "no matter what the goods or services with which the mark is used." [citation omitted]  p. 63

Despite their respective decisions, neither the TTAB nor Judge Lee seem to properly analyze question (1), both relying heavily on dictionary definitions to define "redskin" as an offensive term used in connection to Native Americans to skip ahead to question (2).  Yet question (1) is a threshold question - and if the mark is not understood as referring to an identifiable group of people, a tribunal does not reach question (2).

This is where the marks are of considerable importance.  While each of the six marks uses "redskins" in some manner, the usage is critical to answering question (1).  The six marks include:  a stylized (script) "The Redskins", the stylized "The Redskins" + arrow + Indian profile, non-stylized "Redskins", "Redskinettes", the word mark "Washington Redskins", and the word mark "Washington Redskins" + Indian profile.

It is highly arguable that any of the marks are understood to identify a group of people, since all of these marks are predominantly (if not exclusively) used in association with the NFL franchise and not as a pejorative against Native Americans.  "Redskinettes" and the two marks using "Washington Redskins" are particularly difficult to associate with a group/race of people when considered in context of commercial use.

As used, "Redskinettes" is a mark associated with the female cheerleaders of the football franchise, a term presumptively coined by the franchise and used only by the franchise in this association.  There does not appear to be any evidence that the term "Redskinette" is plausibly understood to refer to Native Americans.  It is doubtful that anything above a statistically insignificant number of Americans would understand this term to mean anything other than in connection with an athletic team nickname (although not necessarily the nickname itself).

Likewise, when used, the two marks utilizing "Washington Redskins" are clearly referring to the NFL franchise located near Washington, D.C., and not a group of Native Americans.  These marks are so identifiable with the NFL franchise that the experts used by the complainants could find scant-little instances of recorded usage of the term "redskin" as a pejorative after 1969 (with 143,000+ articles making at least one "redskin" reference, with the overwhelming majority of these references to the Washington D.C. pro football franchise).

Illogically, the TTAB majority noted that the extreme drop-off in usage of "redskin" as a derogatory term was evidence of the derogatory and disparaging nature of the term; in many circles, this is considered a logical fallacy (as evidence of absence and a false dichotomy).  One could more plausibly conclude that the drop-off in the use of "redskins" in a derogatory manner (compared to the number of actual media uses) is evidence of the strong association between the term and the NFL franchise.

Accordingly, it is reasonable to suggest that Judge Lee put the cart before the horse by divorcing the actual context of the marks as used and labeling the "context" of these marks as being understood to refer to Native Americans.  In part III, additional aspects of this decision will be examined.

The Washington Redskins Trademark Controversy - Part I

Given the recent controversies over the Confederate Flag in South Carolina, as well as the recent SCOTUS decision regarding Confederate Veterans and license plates in Texas, and the alleged implications of these outcomes on the Washington Redskins trademark controversy, I've been building toward a post on the subject.  However, before I could get there, Federal District Court Judge Gerald Lee affirmed the decision of the US Patent and Trademark Office (USPTO) and its Trademark Trial and Appeal Board's (TTAB) decision to cancel six of the trademark registrations the franchise possesses for "Washington Redskins".  So, the time is right for some analysis and critical comment on this very recent decision and the related decision(s) and commentary that have come before. As one might expect, this will be a multi-part post, as one entry will simply not be sufficient to cover all the ground necessary to explain why, in the opinion this author, the USPTO and the Federal Courts have got it wrong so far.  If this is a nation of laws (as is said), then both the TTAB and the Federal Court for the Eastern District of Virginia (E.D. Va.) (and Judge Lee) have ignored that principle because trademark law and judicial precedent say one thing on the standard to apply while these tribunals have misstated, misapplied, and wrongly analyzed the law and doctrine at issue.

Moreover, and as a threshold gripe, the reporting on this matter continues to miss the mark.  Like the TTAB and federal court(s), the news agencies misstate or simply miss the real, relevant issues in analyzing a cancellation proceeding for alleged disparaging marks.  Rather than focus on the appropriate legal standard, the news (and the tribunals), have focused on the term "Redskins" completely devoid of the use of the term in commerce, which is required.  Moreover, to cancel such a mark, significant evidence must be marshaled that shows a substantial composite of the group allegedly disparaged finds the term disparaging.  As was the case in the original Washington Redskins trademark row (Harjo), which took more than 13 years to resolve (in favor of the NFL franchise), there simply is not significant evidence of such disparagement.  Yet, the tribunals have lurched and groped to find "evidence" deemed sufficient to cancel the marks.

In addition, the news reports have been inadequate in describing what will result even in the unlikely event Washington's marks are cancelled.  For example, the Washington Post asserts that the franchise would still have state law rights in the trademarks - but that is not only an incomplete answer, but an answer/option that if far less valuable for the franchise.  Although state law may provide some protection(s), the franchise will still have very valuable rights under the federal trademark statute - the Lanham Act.

Unlike patents and copyrights, trademarks do not derive value and become a legally protectable asset until the mark(s) is/are used in commerce.  For federal protection via the Lanham Act, that use must be in interstate commerce.  However, federal protection is not contingent upon registration; rather, the Lanham Act protects unregistered trademarks as well (under Sect. 43(a) of the act - 15 USC Sect. 1125).

Some commentators have questioned whether a mark previously registered and then cancelled because of offensiveness or disparagement would then enjoy trademark protection under the unregistered provision of the Lanham Act.  It is an interesting question, and there is no substantive precedent in this area, so it would be a case of first impression with any court that is forced to set over this matter.  This, and other issues, will be reserved for subsequent parts to follow.

In part 2, the next entry will explore my reason and rationale for finding the TTAB and federal court decisions in error.

Celebrity Inventors & Inventions

I came across a news article discussing the recently issued design patent for an improved beverage and food cooler to Mike Golic (former NFL football player and current co-host of ESPN radio's Mike and Mike show), son Jake, and three other co-inventors. This got me to thinking about celebrity inventors and inventions (a distinction that will become more clear shortly), as well as the difference between utility (for mechanical arrangement and/or function) and design (aesthetic / ornamental design) patents. If it is not obvious, a celebrity inventor is someone that is already a celebrity and later develops an invention that is exploited in some way.  Although Thomas Jefferson was initially philosophically opposed to patents (and the limited monopoly provided), through his ministerial role as chief patent examiner as Secretary of State in the early years of the US republic, Jefferson came to appreciate the economic benefits derived from a patent system.  And despite is prolific mechanical acumen, Jefferson did not attempt to patent the many inventions he developed after the US patent system was implemented in 1791 (and, of course, many of his inventions pre-dated the system), thus falling outside a reasonable definition of celebrity inventor.

Before his election as the 16th President of the United States (but as a member of Congress), Abraham Lincoln received a patent for buoying water vessel over shoals.  Given the time (and times) of Lincoln's invention and congressional experience, any celebrity that Lincoln enjoyed at that point was limited.

Likewise, although Thomas Edison is extremely famous, his fame is tied to his inventions and his patents, and thus not quite within the celebrity inventor umbrella.

Shortly after she launched her American-film acting debut, in an effort to contribute to the allied war-effort during World War II, actress Hedy Lamarr teamed with George Antheil to develop a frequency-hopping signal system to prevent naval opposition from jamming naval torpedo signals that would cause the torpedo to veer off course and miss its target.  Lamarr (under her married name Markey) and Antheil were awarded U.S. Patent No. 2,292,387 in 1942.  However, a skeptical U.S. Navy did not adopt the technology.  Instead, the technology sat unused until the 1960s, when it was finally adopted.  Although Lemarr skirts the edge, since her technology was not adopted until after the patent term expired, this too falls short.

The several (and best) examples of celebrity inventors generally come from the performing arts, where some necessity was the inspiration for an invention for integrated use in the performer's milieu.  As such, Harry Houdini is probably the first celebrity inventor, creating a diving suit awarded a patent in 1921, some thirty-years into his illusionist career.  Walt Disney held two patents for animation and motion picture techniques, with the animation patent forming part of the launching pad for Disney Studios.

Although Houdini and Disney had utility patents, design patents are well represented by George Lucas and his LucasFilm empire.  Being the pioneer in film-to-toy merchandising, Lucas (and with the artistic input of legendary artist Ralph McQuarry) holds at least 11 issued design patents for various conceptions of characters from the Star Wars universe, such as the uber-popular Boba Fett, Yoda, and the AT-AT imperial transport.

The world of music provides some of the more recognizable implementations of invention-by-inventor.  Eddie Van Halen created a removable try that attaches to the underside of a guitar for assisting the guitarist in accessing the guitar like a piano (now expired).  EVH also invented and owns the patents for a single-string de-tuning system (branded as the D-Tuna) and the design for a guitar headstock (with a scallop cut removed).  EVH also has purchased other patents (here and here).

Musical genius Prince held a design patent for a portable keyboard (expired in 2008).  Prince's chief musical rival in the 80s, Michael Jackson, invented a shoe-device that created the illusion of anti-gravity, most effectively used in his video for the hit-song "Smooth Criminal".

The previous examples stand in contrast to "celebrity inventions" that are really no more than celebrity-endorsed products invented by other non-celebrities.  The "George Foreman Grill" is one of the best examples of this, since the grill was actually invented by Michael Boehm.  With the success of the Foreman Grill, the copycats followed, with the Evander Holyfield Real Deal Grill, the Carl Lewis Health Grill, and the Hulk Hogan Blender.  However, these are good examples of the licensing, use, and (somewhat) successful utilization of the valuable name, image, and likeness (aka, NIL) of a well-known celebrity.

Whether the Golics can land a licensing deal or sell to a cooler manufacturer, and achieve the desired monetary success with the ornamental design of this new cooler remains to be seen.  Mike Golic's celebrity certainly will be a large selling point in getting the product recognized, often one of the hardest parts of achieving commercial success.

While you may not (yet) be famous, if you have an invention that you believe functions or appears differently from what is out there, contact York Law LLC to get more information on what you can do to start down the path of success.  (E: oly3@olenyork.com).

Swift v. The World (It Only Seems That Way)

So, last week, Taylor Swift was using her muscle to first call-out and then praise global-behemoth Apple Inc. once the Cupertino, CA company fell into line with her way of thinking (on royalty payments during the trial-period of Apple's new streaming service).  This week, Swift is on the outs with photographers (and photographers on the outs with her - I sense a song coming from this episode). Apparently, Swift and at least one photographer disagree on whether the photographer is wholly restricted or selectively restricted in using a photo more than once (taken during the "1989 World Tour").  The photographer claims that each photo can be used only once and that the copyright ownership is retained by Firefly Entertainment (Swift's label) presumptively under a "work made for hire" provision in the contract.  Conversely, Swift claims that while each photo may be used only once, additional uses may be provided by submission for approval to Firefly Entertainment, and that the copyright ownership is retained by the photographer (and no "work made for hire" situation ensues).  Obviously, without the executed agreement between the parties, it is difficult to guess which side has the best or better argument(s).  However, "work made for hire" (WMFH) situations are usually very clearly denoted in such agreements, using the specific language from the statute to make it clear that the photographer is being hired by the performing artist for a specific purpose, for a specific (enhanced) fee, and with copyright ownership clearly aligned into the portfolio of the performing artist.  The confusion of whether the photographer is or is not operating under the WMFH provision is, well, confusing.

What may not be readily apparent is that this is not really a fight over copyright issues (or, at the least, the copyright issues are secondary and subservient to a larger set of issues).  Consider: the images captured by the photographer are of Taylor Swift, not of the stage set-up, costumes, band and back-up singers, or the like.  All individuals, famous or not, have the common law right of publicity - the right to exploit his/her name, image, or likeness (aka, NIL rights), or prohibit exploitation by others.  It is a non-federalized form of intellectual property, but tends to be a companion to trademark litigation cases and/or other forms of unfair competition.  And despite these cases not generally grabbing the headlines the way a good patent, trademark, or copyright row grabs, these cases are often more interesting and fairly important (esp. for the entertainer or athlete involved).  In the case of someone as famous as Swift, the ability to exploit and protect against against undesirable (or perhaps over) exploitation makes this form of intellectual property particularly useful for individuals with an established and branded identity.

Right of publicity, and esp. the NIL issue, has grabbed headlines recently with the litigation spurred by former collegiate athletes Sam Keller (Arizona St. quarterback) and Ed O'Bannon (UCLA basketball center) and the class of current and former  collegiate athletes each represented in suing the NCAA and EA Sports.  Although the cases were different, each touched on the right of athletes to exploit their NIL rights.  In Keller et al., the plaintiffs successfully sued EA Sports, surviving an appeal, for its use of collegiate NIL in their popular (and realistic) collegiate video games.  After surviving the EA Sports appeal, the NCAA settled with the Keller plaintiffs for $20 million.  In O'Bannon et al., the plaintiffs successfully sued based on an anti-trust claim that collegiate athletes were not allowed by the NCAA and its member institutions to individually or collectively negotiate with EA Sports (the advantageous beneficiary of amateurism concepts) for pecuniary gain in the use of collegiate athletes' NIL.  Because EA Sports and the NCAA had negotiated the use of NILs of collegiate athletes for a sizeable licensing sum, there is established value in the NILs of the athletes.  By cutting out the athletes, and by denying the athletes a cut of the licensing fee royalty, the plaintiffs alleged that the actions of EA Sports and the NCAA were anti-competitive and a restraint on commercial trade.  This case was also sent up for appeal before the Ninth Circuit, with a decision looming.

Accordingly, rights of publicity and NIL issues are of considerable importance, esp. when the prospect of others free-riding and making a considerable profit.  While it may appear such celebs are on a power trip, protecting one's valuable NIL in the age of electronic media is a harrowing but necessary proposition.

Intellectual Property & You (Taylor Swift)

Like or dislike her music, Taylor Swift is one of the few singer/songwriters presently achieving mega-sales, having now crossed-over from country-pop to super-pop-star status with the recent smash 1989.  In glossing over the very recent reports of Taylor Swift's rebuke of Apple's proposal not to pay (performing rights organizations on behalf of producers and writers) during its three-month free trial of a new streaming service, and Apple's subsequent reversal, I ran across this interesting tidbit:  in late Oct. 2014, Swift had applied for multiple (40) trademark applications based on song lyrics.^[1] Although this has been misreported as Swift having "trademarked" five lyrical phrases, when in fact these were "intent to use" (ITU) filings^[2] without any registering decisions made from the US Patent and Trademark Office, it certainly shows a keen attentiveness to the value of her intellectual property regardless of form or media at issue.  Seemingly ripping a page from the KISS (Gene Simmons/Paul Stanley) playbook, and then like a creative coach tweaking the play, Swift has taken some of the more popular (catch-phrase type) lyrics from the collection of songs found on 1989 and filed these ITU applications to further monetize the lyrics beyond the digital downloads and net-streaming revenue available for artists.  While I wouldn't expect a Taylor Swift casket, or for Swift's name to become the nickname of an Arena Football League franchise, Swift's aggressiveness with this type of branding and marketing may know few bounds.

Footnotes

1. The lyrical phrases "Part Like It's 1989" and "This Sick Beat" are taken from the hit song "Shake It Off"; Swift filed intent-to-use applications for both phrases, and each phrase was filed in 16 separate classes of goods and/or services (or 32 applications in total). Three other phrases, "Cause We Never Go Out Of Style" (3 classes of goods/services), "Could Show You Incredible Things" (3 classes of goods/services), and "Nice to Meet You. Where Have You Been?" (2 classes of goods/services), were each taken from the hit song "Blank Space", comprising the remaining applications of the 40 filed by Swift. 2. An "intent-to-use" (ITU) application is designated as a "1B" application and signifies that the applicant has a bona fide intent-to-use the mark in interstate commerce in the future and in association with the goods and/or services identified, but no present interstate commerce usage exists as of the filing. An ITU application for a mark, if approved, requires that the applicant eventually start using the mark in interstate commerce or forfeit the right to use the mark exclusively in those classes of goods and/or services.

HBO's "Ballers" & the NFL's Trademark(s) and Image(ry)

(hat-tip to Uni-Watch) As notably reported by NBC's online outlet "Pro Football Talk" (Mike Florio), HBO has a new quasi-fictional series about life in-and-around the NFL entitled "Ballers" and starring ex-college football player and professional wrestler Dwayne "The Rock" Johnson. Admirably, Johnson has turned himself into quite an entertainment force, and is a natural for this type of serial vehicle in television. The series promises to hold a mirror up to the NFL and its personalities, although how close and how detailed the mirror actual is will be sorted out down the line. With the various public relations issues the NFL has suffered in the last twenty-four months, the NFL has to hope that the series is either (a) well received by the public in depicting ordinary day-to-day issues players have (and operating to rehabilitate the league image) or (b) doesn't put too fine a point on these issues and instead puts a little (lip) gloss (on the pig, perhaps?).

Aside from the ripped-from-the-headlines-of-the-NFL inspired storyline(s), as pointed out by Florio at "Pro Football Talk", what is also notable is HBO's non-licensed use of the league's and teams' logos and trademarks. I specifically use the term "non-licensed" as opposed to "unauthorized" or "impermissible" - the NFL has not given HBO written authorization to use the trademarks, and perhaps from the league's perspective it is semantics: non-licensed is the same as unauthorized and impermissible. The NFL is considered a image (if not trademark) zealot by many, and often stepping over the line a bit.  However, whether HBO's proposed non-licensed use of the marks is illegal (and thus, truly unauthorized and impermissible) is a different question. A question that tends to not get litigated.

Unless a film or television production has an agreement with a company for product or mark placement, most film/television production houses avoid using real products and associated marks. In instances where the show/film is scripted, then faux brands and products are created, such as the many faux Internet browsers, email clients, databases, and other electronic devices and interfaces that permeate scripted visual performances. In the reality genre, or in quasi-news reporting, video and still photos may feature someone with a shirt or other article with a brand logo that is blurred out. These efforts are undertaken to avoid any perceived (or real) trademark entanglements, in which the brand holder may be thought to endorse the show/film and its content. Many folks assume that unless an owner authorizes trademark use that any such use implies approval, endorsement, sponsorship, or some type of association between the content creator and the brand owner that is unwanted, undesirable, and/or uncompensated free-riding.

Because logo blurring and simple non-use have become the practice in trade for the tv/film industries, it does not address the tension between HBO's perspective and the NFL's perspective. Against industry standard, HBO has declared that its use of these marks is not a legal concern; the NFL's "no comment" echoes rather loudly that at the least they are huddled with legal counsel crafting a response and/or a potential challenge. But the question remains - who is (most) right?

I cannot say with 100% certainty that this is a case of first impression, but I'm not aware of any cases litigated to a decision in this area because the industry standard is practiced by virtually every entity in the industry. In particular, sports-themed fictional shows/films have often avoided these issues by completely fictionalizing the league, the teams and trademarks, and the personalities, unless it is a bio-pic or documentary. Though not exhaustive, here are several examples. The book and film "North Dallas Forty" were fictionalizations of writer Peter Gent's stent with the Dallas Cowboys, with the film depicting a pro football franchise named the "North Dallas Bulls". The films "The Replacements" and "Any Given Sunday" created leagues and teams for their respective pro football worlds. In the 1980s, the HBO television show "1st and 10" about professional football was wholly fictionalized. More recently, ESPN produced the fictionalized world of pro football entitled "Playmakers".

So, what does HBO know or sense about this situation that it can say with confidence that there are no trademark issues here, against industry practice and little-to-no legal precedent (for or against)?

Although one would not expect HBO and the NFL's collaboration on the reality series "Hard Knocks" to have transferred any authorization to HBO beyond that used with that series, perhaps HBO negotiated a grand bargain and took advantage? However, that seems unlikely. Since trademark infringement and trademark dilution are the big potential legal issues in play, and because each is analyzed under a "likelihood of" infringement/dilution standard, perhaps HBO is relying upon the degree of care exercised by and sophistication of the viewer to appreciate that the show is fictional and the use of the marks adds a flavor of realism without creating an endorsement or sponsorship by the NFL? In connection with carefully crafted credits, including long pauses on the production company(ies) involved (and perhaps a disclaimer at the start or end, or both), perhaps it will be evident that the NFL has no part in the show other than as props? Or, maybe HBO doubts the propriety of the NFL speaking for all 32 teams on this issue, and will use a nominal number of teams and marks and roll the dice that each individual team isn't going to devote the resources to litigate the matter? The NFL teams pool their licensing money and divide the revenue, but whether the NFL is authorized to act on behalf of each individual team in regard to each of the 32 team trademarks is less-than clear (though I suspect it to be up to each team to act).

Regardless of what the parties believe at this moment, this may become an interesting trademark tussle between two giants in U.S. pop culture. And we'll be watching.

American Pharoah

"Heeeee did it! American Pharoah has ended the thirty-seven year drought to a deafening roar to the fans here at Belmont Park."  Tom Hammond (NBC's Host) intoned nearly thirty-seconds after the impassioned declaration of race announcer Larry Collmus that the American Triple-Crown (ATC) drought was over.^[1] **** Horse-racing is an unusual competitive event, since most of the action lies with the horse (and not a human).  Moreover, unless one has a monetary or competitive stake in a particular horse, many horse-racing fans don't care which horse wins the Kentucky Derby; however, fans do want that horse to win the Preakness and the Belmont Stakes.  To see excellence and observe history.  We celebrate and immortalize athletes that achieve such greatness. And occasionally, when the athlete transcends sport, the personality and/or image becomes an important part of American culture and commerce.  While horse-racing is a less-popular competitive event compared to team or individual professional or collegiate sports, and the transcendent personalities relatively infrequent, horse-racing still has its share of marketable names and personalities. For example, Secretariat remains a beloved and revered horse among horse-racing fans.  Not surprisingly, Secretariat's name and image are still a valuable commodity.^[2]  Although a giant in horse-racing history, Secretariat does not stand alone when it comes to trademark exploitation, although his shadow is quite large.  The owners of fellow ATC-winner Seattle Slew (1977) possess seven registered trademarks for a variety of goods.^[3] The owner's of ATC-challenger Smarty Jones (2004) possess one registered trademark for horse-breeding and stud services (having cancelled classifications for photos, posters, paintings, and apparel).^[4] The owner's of another ATC-challenger Funny Cide (2003) previously owned two registered trademarks, but have since allowed the registrations to lapse.^[5] However, trademark registration and commercial popularity are two entirely different considerations. Presently, Am. Pharoah stands as the first ATC-winner in thirty-seven years, and the spoils of such a triumph should be many, at least in the short-term. Whether Am. Pharoah endures as significantly as Secretariat remains to be seen, of course. Naturally, the owners of Am. Pharoah are in the midst of seeking various trademark registrations for the horse's name and likeness.^[6] Humorously, in a geeky-IP-attorney kinda-way, the owners (Zayat Stables) filed an intent-to-use (ITU) trademark application for the mark "American Pharoah Triple Crown" on May 18, 2015, the Monday following Am. Pharoah's Preakness victory, and almost three full weeks prior to the Belmont Stakes run (victory). ATC horse-racing fans had been starved and so painfully deprived of a triple crown winner for so long and in so many disappointing ways, the emotions surprisingly bubbled to the surface as Am. Pharoah dashed across the finish line.  As a marketable entity and/or brand, Am. Pharoah stands to capitalize because of this drought. As Leonard Nemoy's "Dr. Spock" might observe in understanding this human (over)reaction:  "Fascinating."  And to understand why, at least in part, Am. Pharoah's commercial viability might be greater than otherwise expected, esp. in the short-term, we must turn back the clock and take a look at the significant triple crown short-comings in ATC-racing over the last thirty-seven years. The Big Background of Belmont Disappointments Coming into 2015, the last ATC-winner was Affirmed in 1978, having staved off chief-rival Alydar in one of the most memorable trio of ATC-races in thoroughbred racing history.  Affirmed bested Alydar by just-under two lengths in total for the three races, including by a neck (Preakness) and by a head (Belmont).  In the thirty-seven years since Affirmed's three masterful circuits, and the high-drama generated by the Affirmed-Alydar rivalry, thirteen horses had won the Derby and Preakness, only to fall short at the marathon known as Belmont:  Spectacular Bid (79), Pleasant Colony (81), Alysheba (87), Sunday Silence (89), Silver Charm (97), Real Quiet (98), Charismatic (99), War Emblem (02), Funny Cide (03), Smarty Jones (04), Big Brown (08), I'll Have Another (12), and California Chrome (14).  Aside from War Emblem (02) and Big Brown (08), and the race-day scratch of "I'll Have Another," most of the other ten horses acquitted themselves well at Belmont despite falling short. Yet, there were multiple close, agonizing losses that seemed to illustrate the increasing difficulty and elusiveness of capturing the Belmont jewel.  In one of the great horse races of the last 35 years, Real Quiet (98) came the closest to winning the Belmont during this span, losing by a nose at the line to Victory Gallup (race begins at ~43:30 of video), a horse that had finished second to Real Quiet in both the Derby and Preakness (although a steward's inquiry would have also ended Real Quiet's ATC-bid with a disqualification).  Coincidentally, Real Quiet's march into history was cut-off by Victory Gallup jockey Gary Stevens, who had his own ATC-hopes dashed twelve months earlier on the back of Silver Charm.^[7] During the most-recent drought, two other horses finished second in the first two legs before winning the final leg and denying fans of another ATC-winner:  in 1987 between Alysheba and Belmont-winner Bet Twice (race begins at 14:00 of video), and in 1989 with Sunday Silence and Belmont-winner Easy Goer (race begins at 11:00 of video). Alysheba's thwarted bid was particularly, if not poetically, painful.  Alysheba was horse-breeding royalty, the son of Alydar, the great-grandson of Native Dancer and War Admiral, and the great-great-grandson of Man O' War.  And, Alysheba was going to restore some of the luster lost by Alydar (having suffered three second-place finishes in the spring of '78).  However, at the top of the final turn, chief-rival and Derby/Preakness runner-up Bet Twice took complete control and trounced the field - to the audible groan of those in attendance.  Two years later, with Sunday Silence, the disappointment was similarly crushing.  As Sunday Silence and Easy Goer entered the final sweeping turn, Sunday Silence and Easy Goer passed race-leader Le Voyageur, with Sunday Silence in the lead at mid-turn, and Easy Goer pulling ahead coming out of the turn.  The crowd roared with excitement, anticipation, and encouragement for Sunday Silence to make one final charge.  However, Easy Goer pulled away, and by the time Easy Goer hit the line, the Belmont crowd had been reduced to a low, disappointed murmur, except for the New York partisans enjoying the "home" win by Easy Goer. From 1997 through 1999, ATC-fans were teased with three consecutive Derby and Preakness winners. In 1997, and in another great Belmont finish, Silver Charm (Gary Stevens), Touch Gold, and Freehouse battled shoulder-to-shoulder down that long front stretch.  With 65 yards to go, Silver Charm was ahead and practically snatching that final jewel off the pedestal; at 50 yards out, Touch Gold had just inched ahead; but Silver Charm had nothing left in the tank to make a final rush, and Touch Gold beat Silver Charm by half-a-length, as fans groaned in disappointment.  As noted above, in 1998, Real Quiet lost to late-charging Victory Gallup (Gary Stevens) at the line in a photo-finish (by a nose), forcing Belmont patrons to wait more than 120 seconds before the stewards posted the results to the audible exasperation of a 100,000+ patrons.  Providing more agonizing insult, in 1999, Charismatic, the great-grandson of both Northern Dancer and Secretariat, went to New York with a chance to win the Belmont carnations.  Like the two previous Belmonts, Charismatic was at-or-in the lead coming out of the final turn, and then in the lead about one-third of the way down the final front stretch run before ceding the lead to Lemon Drop Kid.  Memorably, at the wire, falling just short of victory, Charismatic fractured the condylar bone in the left front leg, ending the brilliant horse's racing career. In 2003, lightly-regarded Funny Cide and jockey were relative long-shots, with Empire Maker expected to make the ATC-charge.  Yet, by early June, Funny Cide stood at the precipice of history.  Coming out of the paddock, the Belmont fans roared for the horse like hadn't been heard since Alysheba. On a rain-soaked bog, Funny Cide and Empire Maker dueled for nearly three-fourths of the race with Empire Maker lunging ahead off the turn, and pinching Funny Cide near the rail coming down the stretch (in the most water-logged portion of the track).  As Empire Maker staved off Ten Most Wanted, Funny Cide was empty and drifted back to third, and the patrons once again left groaning. The following year, Smarty Jones was labeled as a favorite to break the ATC-drought.  After a comfortable win in the Derby (2.75 lengths), Smart Jones destroyed the Preakness field by a record 11.5 lengths.  Such domination naturally elevated Smarty Jones' popularity, and anticipation of an ATC-winner reached a fever pitch by early June as the pre-Derby favorite traveled to New York.  However, like the 2003 Belmont, the 2004 Belmont was ran in wet, sloppy conditions.  Despite the conditions, Smarty Jones broke well, seized the lead after the first quarter, and held the closest challenger at bay by one length in the middle of the race, before surging near the start of the final turn.  At the top of the turn, Smarty Jones had pulled ahead of the challengers, as eventual champion Birdstone was hanging back nearly seventh lengths off the lead.  Coming off the final turn, and into the stretch, 120,000 patrons roared with delight as Smarty Jones appeared to be putting the pedal to the metal and pulling ahead for good.  Calling the action for both Belmont and NBC's television broadcast, legendary announcer Tom Durkin's voice rose with excitement but carried the plaintive tone of horse-racing fans pleading for Smarty Jones to end the disappointment.  And like a bolt of lightning, Birdstone closed the gap down the stretch, catching Smarty Jones just inside the last sixteenth pole, and beating Smarty Jones by one length.  Deflation.^[8]   2015 Belmont Stakes - Celebrating Am. Pharoah Am. Pharoah took control early, ran a steady pace through the back stretch, and started to slowly accelerate around the final turn.  Once in the stretch, Am. Pharoah shoved the accelerator down and headed for glory, to the deafening roar of 120,000 fans, the type of roar the broadcasters and reporters could not remember hearing at horse-racing event since Affirmed's Belmont victory.  Am. Pharoah was simply awesome.  The collective reaction to this victory was similarly impressive. My reaction - to a lesser degree - was similar to that of fans of Secretariat in 1973 post-Belmont. In ESPN's SportCentury feature on the 1973 ATC-winner Secretariat, former CBS and ABC sportscaster Jack Whitaker and novelist George Plimpton separately recall incidents of people weeping after Secretariat's annihilation of his rival Sham and the field at Belmont (video at 22:00).  Also on video, famed sports reporter Haywood Hale Brown recalls a conversation he had with golfing legend Jack Nicklaus sometime after the 1973 Belmont, with Nicklaus telling Brown he watched the race from home, alone, and as Secretariat stretched-out his enormous lead on the field, Nicklaus applauded and then cried at Secretariat's domination.  Sports columnist William Nack (depicted in the Disney feature-film "Secretariat") continues the Brown-Nicklaus exchange, noting the insight Brown had in explaining to Nicklaus (paraphrasing) "Don't you understand?  You've been pursuing perfection in your sport your whole life; at the end of the Belmont, you saw it." Indeed. In the wake of Secretariat's domination, and the three ATC-winners in the 70s, unfortunately, generations had grown accustomed to the Belmont disappointments.  At 42, I have no recollection of Secretariat, virtually no recollection of Seattle Slew, and only the foggiest of recollections regarding Affirmed (and Alydar).  My generation and younger generations didn't know what it was like and had a difficult time imagining what it was they were hoping for in these horses. As a friend noted, this was one of the first historically rare and significant sports milestones in this generation.  A Triple-Crown winner is a rarity.  Am. Pharoah is the twelfth since 1875.  The "droughts" are generally the rule and the ATC-winners the exceptions.  Which is why these type of victories are so publicly coveted and cherished, and why the disappointments are so discouraging. Whether Am. Pharoah's trademarks endure like "Secretariat" or "Seattle Slew" or experience only short-term recognition (like "Funny Cide" and aspects of "Smarty Jones" trademarks), at the least, the long, painful drought is over and horse-racing once again has a giant personality to build upon.

Footnotes

1. Belmont 2015 2. U.S. Trademark Registration Nos. 1986605 and 3243678. Notably, these two different registrations are owned by two different entities, including an entity from Colorado (by registrant Helen "Penny" Chenery) and an entity from Illinois. Whether the two entities are affiliated is unclear. 3. U.S. Trademark Registration Nos. 2831608, 3849764, 3834828, 3834830, 3834831, 3834832, and 3834834. 4. U.S. Trademark Registration No. 3069248 (classes for photos, paintings, postcards, and apparel have been cancelled). 5. U.S. Trademark Registration Nos. 2950703 and 2871639 (both registrations cancelled). 6. U.S. Trademark Application No. 86/633822. 7. Despite the victory, Stevens seemed fairly subdued in his post-race interview with ABC (Stevens at ~1:05:00 of video), apparently appreciative of the lesser history he made and the greater history he denied.