How Do You Get a Trademark That’s Already Taken?

Slate's Culture Blog
June 26 2012 4:39 PM

Will Anthony Davis Get His “Fear the Brow” Trademark?

143018135
College basketball star Anthony Davis.

Photo by Andy Lyons/Getty Images

As you may have heard, consensus top NBA draft pick Anthony Davis plans to trademark the phrases “Fear the Brow” and “Raise the Brow,” culled from his popular unibrow. Thanks to the foresight of a Kentucky retailer, however, the former slogan has already been trademarked. While in college, Davis was barred from reaping the financial benefits of his athletic prowess by NCAA rules. So The Blue Zone, a University of Kentucky apparel store, jumped in and trademarked “Fear the Brow.” Now that Davis’s professional career is imminent, how will the former Wildcat nab the rights to that slogan?

He’ll have to file a lawsuit. I spoke with copyright lawyer Lloyd J. Jassin, who says that under the Lanham or Trademark Act, a person can sue for trademark infringement in federal court. A different tactic, which mirrors a lawsuit, but is strictly done on paper, can be employed. If Davis “has a beef with someone who has applied to register the mark with the Trademark Office in Washington,” Jassin told me, “he can file an opposition, or, if the mark has been federally registered, he can begin a cancellation proceeding.” If infringement is found—or if there is a good chance that the consumer could be misled as to the source of the products—the Trademark Trial and Appeal Board will rescind the application or registration of the trademark.

Advertisement

It might be better that The Blue Zone avoid the courts or the heavy paperwork and instead sell him the rights. Slate’s own Matthew Yglesias tells me that the athlete’s impending status as a national brand “probably has more value than one store in Kentucky.” 

Aisha Harris is a Slate staff writer.