Is Travis Kelce’s newfound status as Taylor Swift’s boyfriend enough to meet the United States Patent and Trademark Office’s (USPTO) “acquired distinctiveness” standard? He plans to find out with the help of Time Person of the Year, Taylor Swift. Swift is no stranger to using intellectual property to effectively protect her brand and music. In fact, the Eras Tour and “Taylor’s Version” are a seemingly successful attempt at reclaiming the rights to her music. Not only does she own the copyrights to her music, but she has also filed multiple trademark applications for phrases such as 1989 TAYLOR’S VERSION and LOVER, among others.
Rumor has it that Swift advised Travis Kelce to file trademark applications to protect his name in addition to other phrases. True or not, Kelce has filed five trademark applications for: (1) TRAVIS KELCE, his own name; (2) “FLIGHT 87”, in reference to his football jersey number; (3) “ALRIGHT NAH”, his signature catch phrase; (4) “KILLA TRAV” his Instagram name; and (5) “KELCE’S KRUNCH,” which could be used to build on a cereal collaboration Kelce had with Hy-vee. These applications span various classes to include items such as “printed posters,” “hoodies,” “bobblehead dolls,” and “entertainment services,” among other things. The USPTO has not yet rendered its response to any of Kelce’s applications.
Kelce will likely face several issues in prosecuting these applications. First, a person can register their whole name, nickname, or insignia that clearly references a real person’s identity where the person referred to expressly consents to the registration. The name or likeness of a living person cannot be used as a trademark without express consent because the right of publicity prevents commercial exploitation of a person’s identity. It can be expected the USPTO will require Kelce to submit a consent statement for at least TRAVIS KELCE and KILLA TRAV.
Second, where a mark is “primarily merely a surname,” the USPTO will reject the application unless the applicant can show acquired distinctiveness. In registering KELCE’S KRUNCH, the USPTO will likely require Kelce to demonstrate that “Kelce” has become distinct enough to signify the source of the goods or services. Adding “Krunch” may enable Kelce to overcome a rejection that his applied for mark is “primarily merely a surname” if he can show that the mark is not perceived by the public as “primarily merely a surname.” Certainly, a celebrity can become a distinctive and recognizable brand through attention and fame, however, Kelce may face an additional hurdle since his brother, Jason Kelce, is also a well-known football player in the NFL. While Kelce was famous on his own accord before his Swiftie Era, his relationship status with Swift has elevated the distinctiveness of his brand. In fact, almost every television broadcast of Kansas City Chiefs games features shots of Swift enthusiastically cheering on Kelce. Notably, Kelce would not be the first professional athlete to attempt to trademark their name. Tom Brady has filed multiple trademark applications for his own name, TOM BRADY, for various goods and services, one of which was recently granted by the USPTO.
However, not only will Kelce have to demonstrate distinctiveness of the marks, but he will have to show that the applied for mark refers to the source of a product or service, along with the fact that the goods or services applied for have been commercialized. Kelce has currently submitted Section 1(b) “intent to use” applications. Ultimately, assuming the USPTO agrees that the applied for marks are distinctive and adequately refer to the source of the goods or services, he will need to show that the applied for mark has been used in commerce before the USPTO will allow the mark to register. An intent to use application allows him time to begin the trademark review process while he works towards putting the marks to use in commerce.
While most of us won’t have the chance to skyrocket to fame as Taylor Swift’s current plus one, it is important to consider the distinctiveness of a proposed mark and the appropriate goods or services for registration in evaluating potential branding for a business. It can be helpful and have the potential to be a huge cost savings to evaluate potential trademarks before committing dollars to branding your business. We will have to wait and see if Kelce’s applications pass USPTO muster.
