Kaepernicking: When Sports Meets IP

You have to hand it to American athletic stars (or to their business consultants). Nowhere else do successful athletes seek to monetize their sports prowess as quickly and with the audacity of American athletes. Even before they have taken their first post-match shower, efforts are afoot to find ways of commercially leveraging the athletic accomplishments associated with their name and image, sometimes in idiosyncratic, if not bizarre, fashion. Lest anyone challenge this sports-mad Kat on this point, consider the meteoric rise of Colin Kaepernick here and "Kaepernicking".

For those readers not well-versed with American professional football (the National Football League), the most important position on a football team is the quarterback, who is ultimately responsible for getting his team to cross the opponent's goal line and to score a touchdown. Successful quarterbacks are treated as rock stars (indeed quarterback, Tom Brady, here, from the New England team, is married to Brazilian supermodel Gisele Bündchen, here).

Until November 2012, the starting quarterback for the San Francisco Forty-Niners was Alex Smith. While not as highly-regarded as highly as someone like Tom Brady, Alex Smith is considered a far better than average quarterback. Unfortunately, Smith suffered concussion in a game in early November 2012 and his coach was forced to use the virtually untested back-up quarterback, Colin Kaepernick. Usually such a move is unsuccessful but, with respect to Kaepernick, all that can be said is—au contraire! He demonstrated extraordinary skills, such that his coach continued to use him even after Smith was deemed fit to play. How successful has Kaepernick been? So much so that his team will be competing this Sunday in the hyperbolically-named Super Bowl, here, which will determine who is the champion of American football.

But it is not only Kaepernick's athletic success that has captured the fancy of football fans. It turns out that every time he makes a touchdown, he celebrates by flexing and then planting a robust kiss on his substantial bicep, which is itself richly adorned with multiple tattoos. Kaepernick's ritual has become as famous as his athletic success and has led to the term "Kaepernicking". All of this has taken place only since November 2012.

Enter the world of trade marks and branding. As reported, here and here, on January 14, 2013, Kaepernick filed an application in the U.S. Patent and Trademark Office here for the word mark "Kaepernicking" in class 25 for shirts. (Presumably the design of the shirts will be unconnected with the size of Kaepernick's biceps, which would make them a poor fit for most of humanity.) The application recites a date of first use of December 31, 2012, although this Kat could not find a sample of the "Kaepernicking"-brand shirt. If any American readers, especially in the Bay area, can put their paws on such on a "Kaepernicking" brand shirt, this Kat would be delighted to see it.

As a sports fan, this Kat wishes Kaepernick and his football team all the best in the Super Bowl match to take place this Sunday. As an IP lawyer, this Kat will be curious to see how "Kaepernicking" fares as a trade mark. As Kaepernick will likely find out, in the world of sports stars and product branding, athletic and commercial success go tightly hand in hand.
"I said 'Kaepernick', not 'Catnip'"

Kaepernicking: When Sports Meets IP Kaepernicking: When Sports Meets IP Reviewed by Neil Wilkof on Tuesday, January 29, 2013 Rating: 5


  1. I foresee a USPTO refusal, as the actual use of the mark on the specimen appears to be merely ornamental. Take a look here: http://tsdr.uspto.gov/documentviewer?caseId=sn85822700&docId=SPE20130117071347


    Thilo C. Agthe

  2. Superbowl baby! Ahem sorry, quite excited.

    More on topic: I wonder if the reason we see US sports stars taking this route so often is because it is a "first to use" and "first to file" jurisdistion? With the UK's backstop protections for unregistered rights and bad faith provisions (not sure if there are equivalents in the US), then the likes of Peter Crouch and his robot dance perhaps don't need to be as concerned about third parties leapfrogging them and cashing in.

    Oh and with apologies to Mr Kaepernick and his exttraordinarily entertaining style of play- go Ravens.

  3. As a person who appreciates your thoroughly entertaining and informative posts (but more importantly, as a diehard 49ers fan!) it is my great pleasure to assist you with your request.

    Official merchandise may be found here. Shameless knock offs may be bought here, here and here.

    Best of luck with it all. And, Go Niners!

    Fady Aoun,
    Sydney, Australia


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