NCAA college athletes should register their athlete trademarks now that they can take advantage of their name, image, and likeness. Registered trademarks provide strong protections for student athletes' NIL and facilitate future endorsement and sponsorship opportunities.
Why can student athletes now trademark their names, images, and likenesses?
As of July 1, 2021, the National Collegiate Athletic Association (NCAA) suspended its rules that prohibited college athletes from taking advantage of their names, images, and likenesses for commercial profit. The suspension applies to all incoming and current student-athletes in all sports. Before the NCAA suspension, only a few states had laws that permitted college athletes to engage in NIL activities despite the NCAA prohibition. Now, college athletes will not violate NCAA rules when engaging in NIL activities. Consequently, all students can proceed to trademark their NIL without fear of reprisal from the NCAA.
The NCAA's new policy advises college athletes to follow the NIL law of their respective schools' jurisdiction, such as reporting NIL activities consistent with state law and/or school requirements. The policy expressly states that students may use professional services for NIL activities. Currently, the NCAA is working with the Federal government on developing national guidelines for college athlete NIL activities. An update will be posted on this blog when the policy or legislation is released.
What are the benefits of college athletes trademarking their NIL?
Registering an athlete's trademark provides legal protection for his/her brand and helps guard against counterfeiting and fraud. Registering a trademark with the United States Patent and Trademark Office (USPTO) is unnecessary for students to earn money from their NIL, but it is suggested because registration comes with stronger, nationwide rights. These rights include the use of the ® symbol, the legal presumption of ownership, and the ability to bring lawsuits concerning the subject trademark in federal court. Additionally, these trademarks will be listed in the USPTO database, which gives notice to anyone looking to register similar marks.
How can a student athlete trademark their NIL?
Almost anything can be a trademark if it indicates to consumers that the athlete is the source of a given service or good. Like professional athletes, student athletes can now file with the USPTO for word mark protection for their nicknames or logos, including of their likenesses. A trademark can be a random design. For example, University of Wisconsin's quarterback, Graham Mertz, has a design mark that he uses to represent his brand. The sooner athletes file their trademarks with the USPTO, the better the chance that their preferred marks will be available for registration.
To obtain federal registration, a trademark must be used in commerce and classify goods or services. For example, if an athlete uses his/her trademark to identify a social media account or posts where he/she sponsors products, the mark should likely be filed under Class 35- Advertising and Business. A trademark can be filed for more than one class, with an additional $250 fee per class. Please note that if a mark is unregistrable or filed incorrectly, the USPTO will not refund the registration fees. If student-athletes want to register trademarks and avoid losing their registration fees, they should consider contacting a trademark attorney for assistance with navigating the process.
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