Within the past few days a number of news outlets, television programs, websites, and blogs have been reporting that former Denver Bronco and current New York Jets quarterback Tim Tebow has received a federal trademark registration for his signature, mid-game prayer gesture in which he drops to one knee while placing a fist against his forehead. This stance is known as “tebowing” and it quickly became an internet phenomenon, with legions posting pictures of themselves and others in similar repose online. The trademark story has been reported by USA Today, the LA Times, and the Washington Times, to name just a few sources. Some reports speculated that “trademarking” a gesture was setting a new, potentially dangerous precedent. Could Mr. Tebow extract a licensing fee or sue for infringement if you dared to tebow without his permission? What about our First Amendment rights and religious freedom? Were Catholics now going to have to pay for the privilege of genuflecting at mass?
Needless to say, as a trademark attorney and author of the Celebrity Trademark Watch, I was a bit embarrassed to have been “scooped” on such a fascinating story. Somehow I had managed to overlook that a famous figure had filed an application to register a non-traditional trademark in the form of a gesture. I immediately went to the U.S. Patent and Trademark Office website to investigate. While I am happy to report that I had not, in fact, missed out on the story from the start, I am nonetheless disappointed to reveal that the news is simply not true. A company owned by Tim Tebow, it turns out, owns seven applications to register the mark TEBOWING in connection with various goods and services (e.g., hats, t-shirts, education services, and toys). No registration has issued in relation to any of these applications and, more importantly, none of them claims the physical gesture itself. They are all applications for word marks only. Someone, it would seem, learned that a single application had been published for opposition by the PTO and, armed with a less than complete understanding of the situation and the contents of the application, incorrectly reported that Mr. Tebow had cornered the market on praying during football. Then the story spread, apparently without much fact checking.
In any event, America can now rest easy, and sports fans can tebow to their heart’s content. But this story nonetheless gives one pause to consider the landscape of non-traditional trademarks. There are trademark registrations for sounds, textures, scents, and objects or images in motion, but can a human gesture be registered as a trademark, too? It turns out that the answer is yes. In fact, Deutsche Telekom (parent company of T-Mobile) owns a U.S. registration for a formation of the letter “T” consisting of a “person whose hands are in motion coming together to form the letter ‘T’” in connection with a variety of goods and services, including telecommunication services. This may be unusual, but, ultimately, the important factor is whether the mark is used in commerce. Deutsche Telekom’s gesture mark might, for example, be used to advertise its services in television spots. If a mark, however traditional or non-traditional its form, is used in connection with the sale or goods of services, it is a candidate for registration. Which is really the issue that was puzzling all along. What could Tim Tebow possibly be selling when he drops to one knee? Turns out, nothing at all, at least for now.
“The Thinker” photo by Erik Daniel Drost.