Importance to Canada

There are two main reasons why Canadians, specifically lawyers and law students, should be interested in the ����������/��’B���ԲԴDz� lawsuit. First, a number of Canadians will be directly impacted by the case; and second, the case will establish a precedent for a novel issue in a niche area of law.

A. Canadian Athletes in the NCAA

There are a vast array of Canadians that will be directly impacted by this case. With the number of NCAA-bound Canadians rising, it is becoming the role of the Canadian sports professional to provide guidance to young athletes to navigate the intricacies of NCAA regulations, which now includes intellectual property exploitation and its . Whereas a typical Canadian may discount the market-size for this advice, the number of Canadians competing in the NCAA is substantial: played Division I NCAA basketball in the 2012/2013 season, played in the 17 NCAA Football Bowl Games in 2013, and Canadian National Hockey League players competed in the NCAA at one time. Moreover, the role of a professional advisor is not limited to individual athletes but is also relevant to advising the NCAA itself and the that comprise the NCAA, including Simon Fraser University, the first institution of the NCAA.

��.�������� Case Precedent

Many critics highlight that the SAs have a strong case.[2] However, it is the NCAA’s response to a judicial decision that will be intriguing. It would be very difficult to conceive the NCAA permitting athletes to earn money from likeness during their collegiate careers given the overarching . Nevertheless, the captivating decision moving forward is whether athletes may retain damages awarded from intellectual property lawsuits. Seemingly, if athletes cannot licence likeness for economic gains, then SAs similarly cannot retain damages from athletic-related intellectual property lawsuits. However, that the NCAA would permit Texas A&M’s Johnny Manziel to retain damages from a trade-mark infringement lawsuit without impact to his collegiate eligibility. Thus, Manziel’s lawsuit reveals a possible “loophole” in the NCAA regulations and in amateur eligibility rules in general.

These issues have never been litigated before in amateur sports and, although arising in the context of NCAA athletics, the same issues can easily arise in other sports contexts in a multitude of jurisdictions. The bylaws of national and international sports federations, many of which govern sports in Canada, are also vague regarding the nexus of intellectual property and amateur status. Due to this vagueness, the sporting world simply does not know the boundaries for an amateur athlete’s ability to, or not to, exploit likeness and related intellectual property. Moreover, the case and the NCAA’s reaction will only constitute persuasive authority in relation to other sport bodies and jurisdictions. An issue of significant concern is that there remains the possibility athletes will be permitted to collect damages under NCAA bylaws but in doing so would risk losing amateur status under separate, sport-specific eligibility regulations.

The arguments, defences, reasoning, decision and aftermath of the ����������/��’B���ԲԴDz� lawsuit will provide direction to athletes and lawyers alike. With the trial in June 2014, Canadian athletes, sports administrators and lawyers should be following its progression.

Nicholas Arruda is a JD candidate at Osgoode Hall Law School and is currently enrolled in the course "Law & Social Change: Creative Industries" (Winter 2014). As part of the course requirements, students are asked to write a blog on a topic of their choice.

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Like Lin and "Linsanity" before him, Davis is facing a possible battle over the catchphrases that have come to be associated with his athletic prowess. However, in Davis’ case, the trade-marks at issue are related to his prominent unibrow.  The trade-marked phrases include .  CNBC reported in late June that Davis has already trade-marked both phrases, quoting him as saying "I don't want anyone to try and grow a unibrow because of me and then trying to make money off of it.  Me and my family decided to trade-mark it because it's very ".

Leaving aside the dubious assertion that Davis' athletic ability grants him the sole right to capitalize from sporting the “monobrow” (indeed, where would that leave , not to mention of Bert and Ernie fame?), there remains the problem that Davis' claim to the catchphrases is not the first in line at the U.S. Patent and trade-mark Office (USPTO).  owns the University of Kentucky apparel store Blue Zone, Kentucky being where Davis first garnered attention and led the Wildcats to a National Championship.  Blue Zone started selling "Brow" merchandise early in the Wildcats' season, and Coffman recently told that he created the slogan "Fear the Brow" and already owns the rights to it.  Although the athletic department at the university has stated that they have kept a close watch on merchants peddling "Brow" merchandise by sending "half a dozen letters", NCAA rules prevented Davis from profiting from his own image.

Davis is now free of those constraints and embarking on his NBA career, a key part of which will involve his ability to turn his name and facial hair into a brand.  Endorsements are just the tip of the iceberg for the modern athlete - from clothing and fragrance lines to starring in a reality TV show, the real game has moved off the court and into the offices of marketing firms.  This makes sense when you consider the tiny window of time athletes have to before their day in the sun is ended by either injury or advancing age.  Davis made a sound business decision by moving early to protect the "Brow" catchphrases, but it may not have been quick enough if Coffman's claims are held up by the USPTO.

According to , special counsel to the intellectual property practice group at Sheppard Mullin LLP in California, there are essentially two ways to establish priority over a trade-mark, as found in the (known colloquially as the Lanham Act).  The first is to establish that the mark "".  This can be problematic when the trade-mark being sought is a catchphrase that is uttered once and then spreads like wildfire, way before it can be used commercially.  The second option, and the route being used by Davis, is to file an "" application with the USPTO under s. 1(b) of the Lanham Act, which allows a person with a " […] to use a trade-mark in commerce" to apply for trade-mark protection.   The mere intent to eventually use a trade-mark in a commercial manner suffices for the application process until the time comes for the trade-mark to be registered.

Luckily for Davis, the USPTO does not simply grant the trade-mark to the first person to claim it, and instead undertakes a which involves ensuring that the trade-mark complies with s. 2(a) of the Lanham Act by not falsely suggesting a connection with any person, living or dead.  Davis is only the latest in a long line of athletes who have had to fight merchants or even their own fans to secure their rights to personal slogans, and can follow the lead of these athletes by invoking this provision.  Tim Tebow of the New 91��ɫ Jets successfully challenged two applications to trade-mark “”, a bizarre phenomenon where football fans mimic Tebow’s ritual of dropping to one knee in prayer after a victory.  Jeremy Lin possesses the only remaining bid for the “” trade-mark, after the USPTO rejected the numerous applications of opportunistic fans in May.  “Linsanity” took the NBA by storm in February, when the former benchwarmer and Harvard grad came out of nowhere to lead the Knicks to a winning streak.  The value of the trade-mark might have somewhat diminished following a knee injury that saw Lin back on the bench for the Knicks’ first-round playoff loss to the Miami Heat, but it certainly helped of the number 17 jersey.

Following in the wake of these decisions by the USPTO, it seems likely that Davis will emerge victorious from his battles over the “Brow”, whether they be with Coffman or another vendor looking to cash in on Davis’ distinctive forehead moustache.  For his part, Coffman might be able to make the argument that the phrase “Fear the Brow” does not include any reference to Davis’ actual name, unlike “Linsanity” and “Tebowing”, and therefore cannot be considered as suggestive of a connection to Davis, who after-all, is not the only celebrity to have sported the unibrow.  In the unlikely event that Coffman is successful, you’ll find me in line at the USPTO, filing for the rights to “The Uni-Brower” and cackling gleefully in anticipation of the vast fortune that will undoubtedly follow.

Britt Gunn is a JD Candidate at Osgoode Hall Law School.

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