As the 2012 to 2013 National Football League (NFL) season hunkered down for its final sprint, a surprise interception from the world of intellectual property (IP) briefly upstaged debate over who would win the Super Bowl. Gridiron fans’ opinions instead swooped on to a decision by San Francisco 49ers quarterback Colin Kaepernick to file for a trademark on the eponymous action ‘Kaepernicking’: a celebratory punch of the air, combined with a kiss of the bicep enabling said punch.
Presumably thanks to Kaepernick’s healthy muscle-to-fat ratio, not to mention his all-round heroic status, criticism of the filing from IP lawyers was noticeably thin on the ground. Fans of other teams, though, were quick to label it a bit of pre-Bowl, attention-seeking gamesmanship. However, it was left largely to sports pundits to flag up what they considered to be the Big Questions around Team Kaepernick’s decision – and they had very little to do with sufficiency of distinctiveness, or whether the gesture had been exhaustively predated by other athletes.
ESPN sports journalist and commentator Skip Bayless said: ‘Let him have 100% focus going into the Super Bowl. Don’t force him to sit in a business meeting with his advisors and handlers to discuss, “Should we go ahead and trademark Kaepernicking?” Surely he had some involvement in this decision… I’m sure he had to at least sign some papers. It took away his focus. It just might have given the big, bad Ray Lewis Ravens a little bulletin-board material: “oh, so that’s what the kid does…”’ (Perhaps Bayless had a point: the Ravens narrowly beat the 49ers 34 to 31.)
So far, so farcical, you may well think in light of that amusing reaction… the whole thing’s a storm in a teacup – there would be no way that such a filing could ever be approved.
And you would be completely wrong.
Branding on a prayer
In the world of celebrity branding, trademarks vividly reflect the personalities and passions of those who file for them, and Kaepernick is by no means a pioneer on the ‘victorious pose’ front. In October last year, it was announced that New York Jets quarterback Tim Tebow had secured a trademark on what has become known as ‘Tebowing’. No vulgar air punch and bicep kiss, this: Mr Tebow’s chosen move is to dramatically sink into a devotional stoop, not unlike Rodin’s The Thinker, honouring the Man Upstairs Himself for bestowing points upon his team.
Tebow’s application impressed examiners at the United States Patent and Trademark Office (USPTO) so much that they allowed him to register Tebowing across the full spectrum of consumer-goods classes – embracing a diverse range of products from pencil cases and fitness gear to paper plates and toy bucket-and-shovel sets. No doubt Tebow would like to think that the Man Upstairs had a hand in that, too.
But lest Tebow & Co receive full credit for originality and thinking outside the end zone, it must be noted that it wasn’t even their idea in the first place. According to online sports journal Deadspin, the player’s legal representatives put in the application only after attempts by people behind two, separate Tebow fan sites to claim the trademark for themselves (well, bootleg merchandise sites is probably a more accurate description). All of which goes to show that any NFL player should be every bit as skilled in defence as he is in offence.
If any other team could use that kind of muscle, it would be socialite sibling collective the Kardashians. In the same month that Kaepernick sought to register his triumphant punch-and-pucker manoeuvre, the media-munching tribe came under legal fire, following their latest bid to edge into the style-products industry. In a lawsuit filed on 9 January, makeup manufacturer Lee Tillett alleged that they had directly infringed the name of her product line Kroma with their recently released Khroma Beauty range (again, the brand reflects the passion).
Speaking about her legal action to the Orlando Sentinel, Tillett said: ‘I developed the Kroma line myself, built my business through my own hard work, and took legal steps necessary to protect it. And yet I have now been forced into legal battle with the Kardashians simply because they have decided to take something that doesn’t belong to them.’
Perhaps Tillett should compare notes with fellow industry player Michael Rey. In October last year, the Beverly Hills entrepreneur took to the media rather than the courts to complain about the Khroma Beauty brand – then still a month away from launch, but heavily advertised. In an interview with showbiz gossip site TMZ, Rey argued that the Kardashians’ line ‘cheapened’ his own makeup brand Chroma, and created ‘confusion in the marketplace’. Rey said that he aimed to take the unusual step of writing to all of his most-regular customers to inform them of the difference between the two brands, and urge them not to be fooled.
Handbags at dawn
Spearheaded by the most prominent Kardashian – namely Kim – the Khroma marketing campaign has also been used to raise the profiles of her sisters Kourtney and Khloe. The family is currently working alongside representatives Boldface Licensing + Branding to append its surname to a host of consumer goods, cosmetics being just the start of that campaign. In a statement, Boldface stressed that it ‘has gone through the appropriate legal channels’ via the USPTO in obtaining rights to use Khroma Beauty, ‘making all proper legal filings’.
Nevertheless, the Kardashians have encountered other hurdles in the IP field. In August 2011, the family was hit by a cease-and-desist letter from couture designer Monica Botkier, who complained that a handbag released as part of the Kardashian Kollection – a range developed for department store Sears – was similar to one of her own designs. Mere weeks before issuing the letter, Botkier had signed up to anti-piracy initiative You Can’t Fake Fashion, sponsored by the Council of Fashion Designers of America and online auction house eBay. ‘They say imitation is the highest form of flattery,’ Botkier blogged, ‘but we don’t think so.’
Sears later removed the handbag from sale.
Ironically, the Kardashians have law in the blood: their late father, Robert, provided the family’s wealth and social status as an attorney for the rich and famous. In 1995, he achieved his own, giddy profile as OJ Simpson’s lawyer during the Naked Gun actor’s lengthy murder trial. Prior to his screen career, Simpson had been an NFL player. If OJ had emerged in Kaepernick and Tebow’s era, imagine what he could have done to the orange juice industry…
Kim Kardashian image courtesy of s_bukley / Shutterstock.com