As reported first by TMZ, Olympic swimmer Ryan Lochte filed an application on August 1st to federally register a trademark for his celebratory catchphrase “Jeah!”  At first glance, and maybe also after many more prolonged ones, filing a trademark for a nonsense word like “Jeah!” looks like a silly thing to do.  Part of the silliness of course is that the word doesn’t have any meaning, which Lochte himself hasn’t been able to help, and has even embraced.  All the same, Lochte hopes to use the brand to help capitalize on his post-Olympics fame and glory.  According to his trademark application, he plans to slap the word on merchandise such as t‑shirts, hats, water bottles, posters, key chains, swimming goggles, and workout DVDs.  He’s already done so for sunglasses, which you can purchase here if you so desire.

Lochte unsurprisingly doesn’t claim to have created the word entirely himself.  He credits American rapper Young Jeezy for having coined its prior version “Cheah!,” but I think it’s more likely that Lochte just heard Young Jeezy use it in many of his songs.  “Cheah!” simply being an emphatic pronunciation of “Yeah!,” I think it’s better to talk about common use than to argue about who originally came up with the word.  Lochte took a liking to it and decided it would be a good way to sell sunglasses and build a brand for himself, and while most of the world only wishes they could worry about such things, Compton rapper MC Eiht actually does.  He claims to have been using the word before Locthe, and he says he’s going to send him a cease and desist letter.  Important to note is that MC Eiht claims to have been using the term since before Lochte, but not to have registered the mark before Lochte.

You could say that trademark protection works on two levels.  A person can have an enforceable trademark by having federally registered it, or they can assert its enforceability through the common law.  By applying to federally register his trademark, Lochte would be able to enforce his mark throughout the country without having to delve into how different jurisdictions interpret their common law of trademark enforcement.  Federal registration makes sense for Lochte because he’s a national athlete, hoping to capitalize on his fame all around the country.  By making a claim of prior use and thinking Lochte should stop, it’s not clear whether he thinks Lochte should stop using the term altogether or whether he thinks Lochte should stop trying to monopolize its commercial use.  Either way, he opposes Lochte’s application to register it, so let’s look at that.

According to 15 U.S.C. § 1051, Lochte’s application needs some crucial things for it to be considered complete.  Namely, § 1051(a)(3)(D) says that Lochte must claim that “no other person has the right to use such mark in commerce either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods of such other person, to cause confusion, or to cause mistake, or to deceive.”  Uh-oh.

By having admitted that he took the word from Young Jeezy’s songs, how could Lochte think that no one else has the right to commercially use the word, or any other confusingly similar word?  Lochte could think his changing the first sound so that “Cheah!” becomes “Jeah!” makes it sufficiently different, but . . . come on.  Alternatively, Lochte could think that his use of the term is different enough from Young Jeezy’s that they occupy different markets and people wouldn’t confuse them for each other.  That’s also a weak argument because all Lochte’s trying to do is sell basic merchandise like sunglasses and t‑shirts.  His line of work doesn’t align him with those products any more than Young Jeezy’s does.

Instead, it might be the goofy nature of Lochte’s mark that will keep him afloat.  The statutory language says that the applicant must claim “no other person has the right to use such mark in commerce. . . .”  It only makes sense to interpret this as meaning that no one else has the exclusive right to use this in commerce.  When the mark is just a variation of the quintessential exclamation “Yeah!,” of course people have the right to use the word when the speak, both within and outside of commercial uses.  So, does anyone else have an exclusive right to commercial use of the term?  Let’s narrow it further.  Trademark law generally requires trademark owners to use the mark or else they lose control over it.  Because of this, let’s phrase the question this way: is anyone else currently using the mark to build goodwill in their brand, the protection of which they can pursue through the common law?

MC Eiht apparently thinks he has control over the trademark, or at least thinks that Lochte doesn’t.  It’s one thing for MC Eiht to be upset that Lochte has commoditized such a commonly used term by applying to federally register it as a trademark, instead of letting it be something left for public use.  It’s another thing, however, to challenge the legitimacy of Lochte’s application by claiming that someone else has the right of exclusive use of the mark.  To show that, MC Eiht might have to argue that his use of “Jeah!,” “Cheah!,” or whatever other variation thereof is a deliberate one to build his own brand.  That won’t be so easy, and in this light, Lochte’s silly application to trademark his nonsensical catchphrase looks like it will go swimmingly.

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