Photo courtesy of Kirby Lee and USA TODAY Sports

Upon leading his team to the Super Bowl for the first time since the dark, pre-Internet year of 1994, San Francisco 49ers starting quarterback Colin Kaepernick applied to trademark the term “Kaepernicking,” used to refer to the touchdown celebration where he kisses his bicep.

Once upon a time, in a simpler, halcyon era of American culture, our sports heroes all had iconic nicknames. These nicknames were widely recognized as legitimate signifiers of whom the sports star was and served as a kind of shorthand conduit to the general public fan base to explain what the star stood for. Names such as “Joltin’” Joe DiMaggio, “Shoeless” Joe Jackson, Eric “Sleepy” Floyd, and Paul “Bear” Bryant are canonical points of reference to fans of various sports. However, recently the grass-roots process of being christened with a catchy yet identifying nickname that catches on through word of mouth and something called “newspapers” has undergone a more commercial shift.

Nicknames in sports today must be trademarked almost immediately upon invention, and often are identified with a complementing action. Beyond the merely uncreative word choices behind names such as “Linsanity,” “Johnny Football,” or “Honey Badger,” it appears that the modern athlete must now also evoke a physical action to literally personifies his nickname. In the process started by “Tebowing,” we were then graced with “Griffining” and now “Kaepernicking”.

The mere fact that kissing your bicep in celebration is being trademarked says a great deal about American trademark law’s tolerance towards nontraditional marks. Nontraditional marks generally refer to trademarks that include, “sensory marks such as sound, color, scent, taste, and tactile marks, and also holographic marks or even the motion of a product.” Legal authorities have argued for years, in relative obscurity, that recognition towards nontraditional marks after Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995) is ill advised, burdensome, and unbeneficial in the long run. In this atmosphere, where even the motion of a Lamborghini car’s door can be trademarked, it is thus not surprising that the proliferation of meme-ish nickname actions are being trademarked left and right.

Share