Tim Tebow Trademarking 'Tebowing' Tarnishes Trademark

from the tithes-for-praying dept

For a long time, trademark law was one of the few aspects of intellectual property that I thought I understood. The government allows some limited exclusivity over a brand so that, as commerce occurs, customers wouldn't be duped into buying one thing when they intended to buy another (or some variation of this equation). Except that relatively recently there has been a push to expand both the rights and reasons for trademarks further, introducing things like the concepts of "tarnishment" and "dilution" to the discussion. As Mike wrote in that piece:
The theories behind such efforts have always seemed quite questionable and, as with these kinds of laws, the effort to put them into the law (and to expand them) are almost always anecdotal, rather than empirical. So you hear plenty of talk about how even if there isn't any consumer confusion, a brand could be "harmed" by dilution or tarnishment. For example, just recently, we had a discussion about Ben & Jerry's ice cream suing a porn company, for creating porn movies that used covers that looked similar to Ben & Jerry's packaging. We noted a complete lack of likelihood of customer confusion, but, as many of our commenters pointed out, the theory in the lawsuit was more focused on tarnishment.
I happen to agree that without customer confusion, trademark shouldn't apply. Even if one is worried about tarnishment, without the confusion or conflation, tarnishment doesn't happen to the original brand. But what if we make this all just a tad more murky? What if the "brand" in question has no commerce to speak of and in fact boasts that the application of the trademark was not for commercial benefit at all? And what if the trademark is granted for something that is both widely done on a national scale and is so done as a routine part of religious expression? According to the law, trademarks are only supposed to apply to the mark when it's "used in commerce." But, due to people confusingly linking it in to "intellectual" property, many incorrectly believe that it applies to anything they want.

Take the case of Tim Tebow, known best for being the awful backup quarterback to another awful quarterback, who has now been granted filed for a bunch of trademarks on 'Tebowing'. In case you missed the last two years on the internet and don't know what 'Tebowing' is, it's essentially genuflecting in prayer on one knee and bowing your head onto your clenched fist.

O Tebowing mais lindo da cidade!

Also known as "the-manual-labor-I-had-to-do-every-Sunday-growing-up-ing"

Image source: CC BY 2.0

This is leading some, like Washinton Times Julia Goralka, to question exactly how much Tim Tebow can now influence how the public prays, all thanks to a government brand monopoly via trademark.

As of October 9, 2012, Tim Tebow now owns the trademark for “Tebowing.” Tebow has stated that he did not acquire the trademark for financial gain, and being the good Christian that he is, that is probably true. Tebow’s goal is “to just control how it’s used, make sure it’s used in the right way.”
Actually, he can't control how the public prays at all -- unless they're doing it in a Doritos commercial in a limited way in which the pose looks like Tebow's trademarked pose, and that is likely to confuse people into thinking he had a part in it. Though, if he's admitting that he didn't get the trademark for financial reasons, it raises the question of whether the trademark is valid at all. Remember, trademarks can only be issued for use in commerce. His admission here certainly suggests the trademark is completely bogus. Update: And, as the details show, he only applied for a trademark on the word... not on the actual pose. So this is even less of a big deal.

More troubling, perhaps, is that in this age of "intellectual property expansion" (and the regular conflation of trademark with things like copyright and patents), many people don't understand that trademarks only apply to use in commerce -- and may actually believe that praying like Tebow is no longer allowed without a license. The end result is that this trademarking of Tebowing, rather than making sure that the pose is "used in the right way," just leads to less and less respect for trademark law, as people assume that if you can trademark Tebowing, trademark law is silly.

Of course, no matter how much we'd like to, we can't just blame Tebow for the overreach here. As Techdirt has been noting over the last year or so, there's been a massive increase in sports stars trying to trademark their own (not always) distinct features, catchphrases or nicknames. Sometimes, it seems like they make stuff up just to trademark it.

So the next time you're bent over in prayer (for purely non-commercial reasons, hopefully), fear not: you're not violating Tebow's trademark. But you might want to pray about the situation we're in, in which sports stars think that getting such trademarks is a reasonable use of the law.



Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Scott, Oct 22nd, 2012 @ 12:42pm

    Another reason hate "born again" Christians,they make a mockery of their own religion without even trying.

     

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    •  
      identicon
      Will, Oct 22nd, 2012 @ 1:17pm

      Re:

      My uncle is a born again Christian who would give the shirt off his back if it'd help. Don't paint an entire group of people with the same brush.

       

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    •  
      identicon
      Not the god stuff again, Oct 22nd, 2012 @ 1:34pm

      Re:

      Why stop at born again?

      Thou shalt not kill - Woooo hoooo the crusades!!!!!

      Bunch of hypocrites. All religions.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Colin, Oct 22nd, 2012 @ 2:11pm

        Re: Re:

        Bunch of hypocrites. All people.

        FTFY.

         

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      •  
        identicon
        The Real Michael, Oct 22nd, 2012 @ 4:20pm

        Re: Re:

        Do you people ever get tired of retreading the friggin' Crusades?

        Back on subject, I don't believe that a person should be allowed to trademark a human pose, motion, or whatever. This is just playing into the corporate mindset of trying to own everything under the sun. If you replicate certain dance moves from a music video and then post on YouTube, for example, they'll take your video down for copyright infringement.

         

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        •  
          identicon
          Anonymous, Oct 22nd, 2012 @ 7:25pm

          Re: Re: Re:

          "Do you people ever get tired of retreading the friggin' Crusades?"


          No! I like to throw in the Inquisition, the repeated mistake of the Crusades, the treatment of Galileo, celibacy and the reasons for it, and a few others. Just as the Church teaches Original Sin, yet produces a highly edited bible created 100 years after they tossed out major players' contributions. They offer an awful lot of opportunity for comment on hypocrisy. I am not looking for an argument here. I respect your right to believe whatever you want. I reserve my right not to 1)be persuaded 2)even listen at times.

          Most folks talk out of both sides of their mouths at the same time, and Christians are no different. The problem is for the rest of us to know when they are talking out of their 'A' and when their talking out of their 'CS' side. CS=Common Sense, figure 'A' out for yourself.

          Oh, and I agree, dump any trademark claim that is not referring to a product or service, and the reference is such that it might cause the public confusion, and nothing else, repeatedly, in such a way that all the Olympic Pizza's et al may have their names back.

           

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          •  
            identicon
            Anonymous Anonymous Coward, Oct 22nd, 2012 @ 7:37pm

            Re: Re: Re: Re:

            The above is unfinished. Something burped and it posted after first preview while correcting some glaring errors and adding the Name. I hope no errors were left in place.

             

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          •  
            identicon
            The Real Michael, Oct 23rd, 2012 @ 5:43am

            Re: Re: Re: Re:

            "No! I like to throw in the Inquisition, the repeated mistake of the Crusades, the treatment of Galileo, celibacy and the reasons for it, and a few others. Just as the Church teaches Original Sin, yet produces a highly edited bible created 100 years after they tossed out major players' contributions. They offer an awful lot of opportunity for comment on hypocrisy. I am not looking for an argument here. I respect your right to believe whatever you want. I reserve my right not to 1)be persuaded 2)even listen at times."

            So you cherry pick the negatives while ignoring the positives.

             

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    •  
      identicon
      Anonymous Coward, Oct 22nd, 2012 @ 2:44pm

      Re:

      Does Tebow work on the sabbath?

      If so, when's the execution to take place?

       

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  •  
    identicon
    Pinstar, Oct 22nd, 2012 @ 12:42pm

    Beatles

    Hey! Someone alert the Beatles's trademark holders!

    4 guys in a crosswalk? They're Abbey Roading!

     

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    el_segfaulto (profile), Oct 22nd, 2012 @ 12:45pm

    Article Correction

    I hate being pedantic, but Tim Tebow is actually a fullback who sometimes lines up as a tight end, and sometimes takes snaps. Trust me, I've seen him play and he is definitely not a quarterback.

     

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    •  
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      John Fenderson (profile), Oct 22nd, 2012 @ 12:54pm

      Re: Article Correction

      Oh, segfaulto, nobody talks dirty like you do!

       

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      •  
        icon
        el_segfaulto (profile), Oct 22nd, 2012 @ 2:54pm

        Re: Re: Article Correction

        And yet, my work goes unappreciated at home.

         

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        •  
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          art guerrilla (profile), Oct 23rd, 2012 @ 1:55pm

          Re: Re: Re: Article Correction

          as a Gator Fan, i have to take issue with this:
          *someone* got a Heisman trophy as a quarterback, and i'm pretty sure the name on it was Tim Tebow...
          *someone* won a national championship as a quarterback, and as i recall, his name was Tim Tebow...

          *please* don't tell me your tribe is from the ACC, or i will laugh in your general direction...

          art guerrilla
          aka ann archy
          eof

           

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  •  
    identicon
    Lord Binky, Oct 22nd, 2012 @ 12:45pm

    So is there a 4chan image macro thread picturing Tim Tebow "Tebowing" to very innapropriate images?

    I wouldn't want him to be offended by people "using it the wrong way".

     

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  •  
    icon
    el_segfaulto (profile), Oct 22nd, 2012 @ 12:46pm

    Article Correction

    I hate being pedantic, but Tim Tebow is actually a fullback who sometimes lines up as a tight end, and sometimes takes snaps. Trust me, I've seen him play and he is definitely not a quarterback.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Oct 22nd, 2012 @ 12:50pm

    Who granted this?............

     

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      Dark Helmet (profile), Oct 22nd, 2012 @ 12:52pm

      Re:

      "Who granted this?............"

      Well, if one were to ask Tebow this question, I can 100% promise you he would tell you God made it possible....

       

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  •  
    identicon
    DogBreath, Oct 22nd, 2012 @ 12:55pm

    Something else Tebow can "Trademark"

     

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    Mike Martinet (profile), Oct 22nd, 2012 @ 1:22pm

    Uh Oh

    Doesn't some political organization already have a trademark on "teabagging"?

     

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    •  
      identicon
      Anonymous Coward, Oct 22nd, 2012 @ 2:34pm

      Re: Uh Oh

      teabagging

      I always suspected there was a connection, can you link to an action video from one of the campaigns?

       

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  •  
    identicon
    Anonymous Coward, Oct 22nd, 2012 @ 1:24pm

    Being able to apply for a Tebowing trademark isn't a problem; IP law is clearly beyond the average person (or sports star).
    However, being granted said trademark is a problem, since IP law is apparently also beyond the average USPTO attorney. I can't imagine why people unfamiliar with trademarks would be put in charge of the entire country's trademark system, but I strongly suggest that they be fired immediately and replaced with competent attorneys.

     

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  •  
    icon
    Thomas (profile), Oct 22nd, 2012 @ 1:28pm

    he certainly..

    won't turn down any financial gain though. never heard of a Christian who turned down an opportunity for money.

     

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      icon
      John Fenderson (profile), Oct 22nd, 2012 @ 1:41pm

      Re: he certainly..

      There are quite a lot of Christians who aren't money-driven. There are also quite a lot who intentionally live a life of poverty as part of their devotion.

      The Christians you're talking about aren't, in my opinion, Christians at all if being Christian is defined as living life the way that Christ prescribed.

       

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        identicon
        Not the god stuff again, Oct 22nd, 2012 @ 2:06pm

        Re: Re: he certainly..

        John,
        The name of the religion does not matter. As long as you live your life righteous, and be a good human being, there is no need to follow a suggested path of good living from an organization, or corporation, which IMHO is what organized religion is.

        Everyone, just stop the generalizations by race, religion, or creed, and just treat everyone with the respect they deserve.

        Don't make me come back here... LOL.

         

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        •  
          icon
          John Fenderson (profile), Oct 22nd, 2012 @ 3:59pm

          Re: Re: Re: he certainly..

          Oh, I agree. I'm not personally Christian at all, I'm just pointing out that Christian dogma is at odds with the accumulation of wealth and therefore to accuse all Christians of being greedy is simply misidentifying who the Christians are.

           

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    •  
      identicon
      PRMan, Oct 22nd, 2012 @ 2:53pm

      Re: he certainly..

      One time I turned down a job doing the same thing paying double because I felt that God didn't want me to take it.

      After that (and completely unknown to me at the time), I got in a partnership with a vendor to write some software and made pretty good money doing it. Still not as much as the other position, but I was able to help his wife and daughter out with selling his company when he died unexpectedly.

      I am very happy with the way everything turned out, even though it wasn't for maximum financial gain.

       

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  •  
    identicon
    The Thinker, Oct 22nd, 2012 @ 1:30pm

    "pose looks like Tebow's trademarked pose"

    Looks like I should of had mine Trademarked:
    http://upload.wikimedia.org/wikipedia/commons/4/45/The_Thinker,_Auguste_Rodin.jpg

     

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    BentFranklin (profile), Oct 22nd, 2012 @ 1:30pm

    If Tim Tebow breaks off a long scramble for a touchdown, and he says a little prayer of thanks to God, but there was holding and they call back the play, does that call back the prayer too? I can't find that anywhere in the rule book.

     

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  •  
    identicon
    JohnParry, Oct 22nd, 2012 @ 2:27pm

    Author has no credibility

    Author, since you are anti-Tebow in the first place, you nor your article has credibility.

     

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  •  
    identicon
    kenichi tanaka, Oct 22nd, 2012 @ 3:03pm

    Tebow trademarks "The Thinker", created by famous French Sculptor

    So, Tim Tebow has been granted a trademark over something that he has no right to trademark in the first place. Pardon me for saying but that this trademark should never have been granted considering that this is a cheap ripoff of Auguste Rodin's famous sculture, "The Thinker":

    http://upload.wikimedia.org/wikipedia/commons/thumb/5/56/The_Thinker%2C_Rodin.jpg/220px -The_Thinker%2C_Rodin.jpg

    Not only has Tebow gotten a trademark but he got a trademark on something that he stole from a famous French Sculptor who died in 1917.

    Tebow is a dishonorable idiot who thinks he's entitled to this trademark.

     

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    Atkray (profile), Oct 22nd, 2012 @ 3:23pm

    Looking forward

    So who is the bigger idiot,

    the person that granted this trademark

    or

    the judge that will eventually uphold it in a ruling against some poor kid that used it in a You Tube™ video?

     

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  •  
    icon
    Hugh Mann (profile), Oct 22nd, 2012 @ 3:56pm

    Well, not really . . .

    I did a quick check at uspto.gov, and it seems there are ten listings for registrations of "TEBOWING". Three dead and three live. The three live ones all seem to be for the word mark, as used on various products and services. I don't see one for the act of tebowing itself.

    And, just because you are not looking to make money doesn't mean you're not using the mark in commerce. Maybe he wants to give away T-shirts or something. Or sell them for good causes, or maybe donating the proceeds to his church.

    Further, I think the argument that some people might be so confused as to think that making a big showy deal of dropping to one knee to modestly pray in front of millions of viewers is prohibited, I think we could look to the test that has been used before on TechDirt. Would a moron in a hurry make that mistake?

    In any case, in my admittedly very quick, cursory search, I didn't see a registration that could even loosely be interpreted as impacting the act of praying in the Tim Tebow style. It could impact the act of selling a T-shirt that has a message about tebowing, but not the act of striking the melodramatically casual pose itself.

    HM

     

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      icon
      Hugh Mann (profile), Oct 22nd, 2012 @ 3:57pm

      Re: Well, not really . . .

      Quick correction: three dead listings and SEVEN (not three) live ones. The total is ten.

      HM

       

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      identicon
      DogBreath, Oct 22nd, 2012 @ 6:31pm

      Re: Well, not really . . .

      Further, I think the argument that some people might be so confused as to think that making a big showy deal of dropping to one knee to modestly pray in front of millions of viewers is prohibited, I think we could look to the test that has been used before on TechDirt. Would a moron in a hurry make that mistake?


      No, no one on TechDirt would make that mistake (with the exception of a few "loose cannons"), but I bet some Trademark troll lawyers and a few moron juries and judges in East Texas will easily make that mistake.

      It will pan out to the same tired old song as copyright and patent trolling, "You can pay us upfront, or we'll take you to court. Even if we lose, you'll still be out a larger amount of money than you would have been if you hadn't decided to defend yourself. So do yourself a favor and pay up to make us "go away"... til the next time we come after you with something even more frivolous."

       

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    identicon
    Anonymous Coward, Oct 22nd, 2012 @ 6:39pm

    So where's the registration? It's a public database, surely you could cough up the link to the supposed record, if there was such a thing. Instead, you rely on a "reporter" who admits to not knowing the difference between a trademark and a copyright and breathlessly reports that it's possible to claim exclusive rights over genuflecting at church. You were smart enough to point out THAT isn't true, but what about confirming whether such a registration even exists? Sloppy.

    It looks like there is one application for TEBOWING that was published on October 9, 2012, the date given by Newsday for the application's "approval." It is an application for the WORD TEBOWING for use on hat and T-shirts, not for any kind of physical motion or even an image depicting a physical motion. http://tsdr.uspto.gov/#caseNumber=85458244&caseType=SERIAL_NO&searchType=statusSearch The premise of you article is entirely false.

    It's also false that this application was filed by Tim Tebow. Instead it was filed (along with others) by an individual d/b/a "Tebowing." The application was refused for its false suggestion of a connection with Tim Tebow and ultimately was assigned to Tim Tebow. Perhaps you could use this information to demonstrate how the Trademark Office functions quite well to prevent opportunists trying to register trademarks associated with famous individuals.

     

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    identicon
    Pixelation, Oct 22nd, 2012 @ 11:04pm

    I guess we'll have to call it Teblowing so we don't get in trouble.

     

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    identicon
    Gadget, Oct 23rd, 2012 @ 5:32am

    "Tebowing"

    Yes, both he and his lawyer are an embarrassment to themselves and religious people everywhere. You can't trademark prior art. It's been called genuflecting for centuries before his attention-starved, arrogant bottom was ever born. He needs to get over himself.

     

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    identicon
    Anonymous Cowherd, Oct 23rd, 2012 @ 5:56am

    Trademark law is silly and people having even less respect for it is not troubling at all, its a good thing.

     

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    identicon
    GetALife, Oct 23rd, 2012 @ 6:33am

    So he is protecting his name/take on his name. "Tebowing", the word, is trademarked not the action. This will help prevent his name being used to endorse items without his permission. I certainly would not want to be a public figure and find out my name or a take of my name is now being used to endorse porn without any recourse to prevent it. Get off it already and get a life.

     

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    identicon
    gnudist, Oct 23rd, 2012 @ 7:12am

    Irony thy name is tebow

    While tebow is famous for his public faith, yet the bible instructs you to go off by yourself when you pray(matt 6.6)

    So, his public displays of faith are against the teachings of his faith! FPIC EAIL

     

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