Last week, a friend of mine emailed me an article about a trademark issue related to the Trayvon Martin story. In the event you haven’t heard about Trayvon Martin because you’ve been doing research in Antarctica for the past month, Trayvon was an African-American teenager who was shot and killed in Florida by a neighborhood watch captain who claims he was acting in self-defense. Trayvon was wearing a hooded sweatshirt and was unarmed at the time he was shot. The controversial killing has received an enormous amount of media coverage because the shooter has not been arrested by Florida authorities and it appears from a 911 call that he might have provoked Trayvon by following him throughout the neighborhood and approaching him when there was no justification to do so. The case has understandably sparked public outrage in many parts of the country and has resulted in numerous demonstrations and protests during which participants have chanted such phrases as “I AM TRAYVON” and “JUSTICE FOR TRAYVON.” These two rallying cries have appeared on t-shirts and hats worn by Trayvon’s supporters, as well as on large signs and banners used during the protests.
On March 21, Trayvon’s mother, Sybrina Fulton, applied to federally register the trademarks I AM TRAYVON and JUSTICE FOR TRAYVON for a wide variety of prerecorded digital media featuring Trayvon Martin. You can view the trademark applications here and here. Both applications were filed on an intent-to-use basis, meaning that Ms. Fulton had not used the marks prior to the filing date of the applications. Needless to say, I think it’s more than a little weird that Ms. Fulton is preoccupied with filing trademark applications less than a month after her son was killed. Although Ms. Fulton claims that she doesn’t intend to profit off the trademarks she’s seeking to protect, the whole point of filing an application is to protect your commercial interests in a trademark and to obtain exclusive rights so that you can prevent others from using a mark that’s confusingly similar. If Ms. Fulton truly has no commercial interests and does not want to stop others from using Trayvon’s name, then I question why Ms. Fulton would spend $650 in government fees to file two trademark applications.
But Ms. Fulton is not the only person wanting to “protect” Trayvon’s name. Just two days after Ms. Fulton filed her applications, a California resident named Marcus Singletary filed an intent-to-use trademark application for JUSTICE FOR TRAYVON for “hooded sweatshirts.” And then on March 27, a Kansas resident by the name of Martin Markley filed a trademark application for IF I HAD A SON, HE’D LOOK LIKE TRAYVON for “licensing of advertising slogans and cartoon characters.” Now, this phrase might sound familiar to you because it received an incredible amount of media attention after President Obama said it during a press conference at the White House on March 23. Well, apparently, Mr. Markley was the originator of this phrase because he claims in his trademark application that he first used it on March 17, which is almost a week before President Obama ever uttered those words. As fine a person I’m sure Mr. Markley is, I think it’s more likely that he’s suffering from a debilitating case of the fibs rather than temporarily obtaining superhuman powers to see into the future.
I’m very curious about how all four of these trademark applications are going to be treated by the Trademark Office. The Lanham Act (which is the primary federal trademark registration statute) prohibits the registration of trademarks that “falsely suggest a connection with persons living or dead.” To establish that a proposed trademark falsely suggests a connection with a particular person, it must be shown that:
(1) the mark is the same as, or a close approximation of, the name or identity previously used by a particular person;
(2) the mark would be recognized as such in that it points uniquely and unmistakably to that particular person;
(3) the particular person named by the mark is not connected with the person or entity providing the products/services; and
(4) the fame or reputation of the particular person is such that, when the mark is used with the products/services, a connection with the person or institution would be presumed
In my opinion, the trademarks in all four applications satisfy elements (1), (2) and (4). As to the first element, each trademark includes the name “Trayvon,” which is the legal first name of Trayvon Martin. In reviewing the second element, most people would recognize the marks as pointing to Trayvon Martin because JUSTICE FOR TRAYVON and I AM TRAYVON were being used by thousands of people during highly publicized demonstrations, and IF I HAD A SON, HE’D LOOK LIKE TRAYVON was a nationally broadcasted statement made by Barack Obama specifically referencing Trayvon Martin that was repeatedly analyzed and commented upon on television, radio, and the Internet. As to the fourth element, I think there is little question that Trayvon Martin is currently the most well-known deceased teenager in the country, and when you consider the types of products and services that are listed in the applications, a connection could easily be presumed.
But that still leaves the third element, which is whether Trayvon Martin is “connected” with the people who filed these four applications. When we’re talking about a deceased person, a key consideration is whether or not there is someone (a person, estate, or juristic entity) that has rights in the name and can assert such rights against others. As far as I know, Trayvon Martin had no connection whatsoever with Marcus Singletary or Martin Markley. They just appear to be random people who want to make a quick buck off a bad situation. But what about Trayvon’s mother? Does such a “connection” exist? Well, if you look at the Florida Right of Publicity statute, it states that consent to commercially use the name of a deceased person must come from a surviving spouse or surviving children. Trayvon Martin did not have a surviving spouse or a surviving child who could provide Ms. Fulton with such consent. This makes me wonder whether Ms. Fulton has any more right to register her son’s name than Marcus Singletary or Martin Markley. Since I am far from an expert on right of publicity laws (especially those in Florida), I would love it if someone out there could shed some light on this issue. It would be most appreciated.
I will continue to monitor all four applications and will let you know what happens in about 3-4 months when the Trademark Office examines them. If you love trademarks as much as I do, I’m sure you can’t wait.