In today’s fast-paced, global media environment athletes must be prepared for a sudden bolt into stardom. Jeremy Lin rose from a D-League vagabond to the face of the NBA overnight. After a dominating performance on February 4, 2012, as the new point guard for the New York Knicks, Lin led the team to seven straight wins and became a virtual obsession for the media. Lin’s popularity has been helped by his unique brand: a combination of Ivy League pedigree, Taiwanese heritage and a superior ability to break down defenses and get to the basket, which has captured the hearts of basketball fans all over the world.
Before learning of a torn meniscus, the phenomenon surrounding his popularity was coined “Linsanity” and in the early part of 2012, “Linsanity” ruled the airwaves. During that time, “Linsanity” created an explosion of merchandise and goods that helped Lin establish his brand.
Surprisingly, however, most if not all of the profits made by the use of "Linsanity" do not involve or benefit Jeremy Lin. Others quickly capitalized on the popularity of “Linsanity” to market their own goods bearing the moniker.
Many ask us if this is legal—someone else profiting from another’s popularity and good name?
Unfortunately for Jeremy Lin, the use of his name and reliance on his reputation by others might be legally permissible simply because of Lin’s own professional missteps. In short, Lin wasn’t prepared for stardom and may not have acted quickly enough to capture and preserve his rights. As a result, various competing claims over “Linsanity” has propelled it into the legal world. While the media frenzy over “Linsanity” has cooled off a bit, the legal dispute over who gets to use “Linsanity” will have a far-reaching impact on Jeremy Lin’s future as well as the futures of his commercial competitors.
Linsanity in the Trademark Office
As of the time of this article, there have been ten (10) trademark applications attempting to claim ownership of the term “Linsanity” for use on goods and products ranging from clothing to eyewear. Two (2) of the trademark applications were filed prior to Jeremy Lin’s application. The first, filed February 7, 2012, by Yenchin (Matthew) Chang seeks registration of “Linsanity” for the sale of men’s, women’s and children’s clothing. The second, filed on February 9, 2012, by Andrew Slayton seeks to register the use of sports apparel. Jeremy Lin joined the party and filed his registration application for “Linsanity” on February 13, 2012, covering a wide range of sports products and clothing.
Jeremy Lin’s entry into the “Linsanity” bonanza did not seem to deflate the hopes of others since seven (7) other applications were filed after his filing. And with good reason. In most cases, the law encourages competition and innovation by rewarding those who arrive first and those who diversify the marketplace. As a result, Lin now faces a battle to obtain and protect the “Linsanity” trademark and maintain control over his emerging brand; a battle that could have been avoided.
Don’t Let This Happen To You:
- Know Your Arsenal
As an athlete building a brand you must understand how to establish, obtain and protect your trademark. A trademark is any word, name, symbol or device used by someone to identify their goods and distinguish those goods from the goods of another. Occasionally multiple people claim the right to use a single trademark. In those cases, generally the first person to use the trademark in commerce acquires the right to use the trademark. However, in some situations a person may acquire the right to use the trademark because the trademark has become significant due to its association with a particular person, company or manufacturer.
Typically, a trademark cannot have the same, or similar, name of another living person. In addition, if you have a trademark you can keep others from registering and using the trademark to profit from the reputation you have built. You can also force someone to stop using your trademark when their use causes the buying public falsely to associate their products with you. Moreover, another’s acquisition and use of a domain name bearing your trademark, or that incorporates your name into the domain name, may be prohibited. Finally, you may recover from and prohibit another who has used your name or image—your persona—on a product for profit.
- Taking Linsanity Back
Can Lin win? Even though Jeremy Lin finds himself in a battle for his trademark, he has several paths to victory. An illustration of how Lin might establish his rights to “Linsanity” is instructive for the athlete who is caught unprepared for his or her time in the spotlight.
(1) Extinguish All Other Claims For Your Trademark
Lin can nullify all the other applications to trademark “Linsanity.” He needs only to show that the mark “Linsanity” is derived from his name, and that any products sold by the applicants will suggest that Jeremy Lin is in some way associated with or endorses the applicants’ products. The trademark office has denied similar applications on this basis. In one case, an application to register a football bearing the stamp “Bo” was rejected upon application by Bo Jackson that the football falsely suggested his connection with a product that he never consented to have his name attached to.
(2) Establish Your Right To The Trademark
Lin can establish that “Linsanity” is his trademark by showing that “Linsanity” has become significant to the public because it is associated with the media excitement generated by his success on the court. Evidence of this significance can be found in the massive amount of unsolicited media coverage and increased sales and market share that has occurred since the term “Linsanity” was first used on or around February 5, 2012. A survey of basketball fans and sports merchandise consumers of all ages might bolster this point. By establishing that “Linsanity” acquired significance in the public eye on or around February 5, 2012, Lin should have a solid claim to use the trademark.
(3) Stop the Profiting off of Your Name and Likeness
“Linsanity” is part of Jeremy Lin’s persona his name and identity—and with a few exceptions, the law grants him the exclusive right to use it. “Linsanity” would not exist were it not for Jeremy Lin and since he has not licensed the use of his persona to any of the other parties using his persona, Lin has adequate grounds to stop others from using “Linsanity.” Courts have considered this before. In one case a court granted Johnny Carson’s claim against a seller of portable toilets affixed with a “Here’s Johnny” mark, finding that Johnny Carson was so identified with the term “Here’s Johnny” that any use of the term represented a use of his identity—a protected right that only Johnny Carson could use. If Lin wants, he should be able to extend licenses to those who want to use his image on products as a means of establishing his brand.
(4) Acquire Your Domain Name
Jeremy Lin should be able to acquire the rights to the “Linsanity” domain name, for many of the reasons already discussed—t
he domain name “Linsanity” is derived from Lin’s name and is associated with him by the public. Others cannot use or profit from it.
As you begin your career as a professional athlete, it is critical that you think about all of your assets and how to make them work for you. Besides having the physical and mental skills that have propelled you into professional sports, your persona and identity are also assets that are to be cultivated, nurtured and protected. Think ahead and recognize how your assets will perform over time. Although your physical skills got you here, they are a depreciating asset that will naturally decline. However, your image and brand are appreciating assets that can last you a lifetime. It is important to optimize and balance these assets. Focus intensely on developing your skills and trade as an athlete, because that is the first step in building your brand.
While Lin likely emerges on top in this battle, his situation is instructive about the pitfalls that belie those of you in the public domain who do not plan adequately.
- Plan for your moment by taking proactive measures to establish and protect your brand. If you have a non-common name, you should attempt to register it, both as a trademark and as a domain name.
- Monitor your media coverage and public perception closely. As catchphrases and monikers emerge, move to register and commercialize immediately!
- Know your arsenal and understand that it is never too early to start setting the defenses necessary to build your brand. Doing so will allow you to avoid the hassle of fighting for what is rightfully yours.
Co-Authored by F. Paul Pittman and Kanika D. Corley
 According to outlets such as Bloomberg and Forbes, “Linsanity” has had direct impacts on several markets, causing an increase in the share price for Madison Square Garden, secondary ticket prices for New York Knicks games and sales of Lin and team-related paraphernalia. The New York Times Magazine recently sponsored a “Linsanity” T-Shirt contest. “Linsanity” has even earned a spot among the ice cream tubs of Ben & Jerry’s Ice Cream shops. Forbes has estimated Lin’s value at $15 million based on his effect on the market and economy.
 By explaining that Lin is in a solid position to establish his rights to “Linsanity”, we are not asserting that Lin will win. Nothing is guaranteed and the legal process must run its course.