Who Owns Your Name? The Trend and Economic Impact of Personal Trademarks in the NCAA NIL Aftermath

The Journal of Business, Entrepreneurship The Journal of Business, Entrepreneurship

& the Law & the Law

Volume 16 Issue 1 Article 5

5-15-2023

Who Owns Your Name? The Trend and Economic Impact of Who Owns Your Name? The Trend and Economic Impact of

Personal Trademarks in the NCAA NIL Aftermath Personal Trademarks in the NCAA NIL Aftermath

Daniel Foster

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Who Owns Your Name? The Trend and Economic Impact of Personal Trademarks in the

NCAA NIL Aftermath

, 16 J. Bus. Entrepreneurship & L. 139 (2023)

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WHO OWNS YOUR NAME? THE TREND AND

ECONOMIC IMPACT OF PERSONAL

TRADEMARKS IN THE NCAA NIL

AFTERMATH

Daniel Foster

I. INTRODUCTION ..............................................................................139

II. HISTORY AND BACKGROUND .......................................................143

A. THE BACKDROP OF TRADEMARK LAW FOR LOGOS ....................143

B. HISTORY OF ATHLETIC LOGOS ...................................................146

C. THE SHIFT FROM COMPANY-DESIGNED TO ATHLETE-DESIGNED

149

III. THE IMPACT OF NAME, IMAGE, & LIKENESS DEVELOPMENT ......151

A. THE SIGNIFICANCE OF THE NIL DECISION .................................152

B. THE ECONOMIC IMPACT OF THE SHIFT FROM OWNERSHIP TO

LICENSING ..........................................................................................163

IV. CONCLUSION: HOW THE MODERN TREND AND NIL POLICY WILL

AFFECT THE TRADEMARK LANDSCAPE ................................................165

I. INTRODUCTION

As the world of sports has become increasingly commercialized,

athletes’ personal brands have become a popular avenue of revenue.

For

protection and profit maximization, these athletes have begun

trademarking their names and personal logos.

Athletes ranging from

See Igor, 25 Outstanding Logos of Professional Athletes,

INSPIRATIONFEED, https://inspirationfeed.com/athlete-logo-designs/ (last updated

on Mar. 3, 2022).

See Ahiza Garcia, Pro Athletes and the Things They Trademark, CNN

(Aug. 19, 2016, 12:39 PM),

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Michael Jordan to Roger Federer to Tom Brady have used these personal

logos to further their brand and personalize their endorsements.

“[L]ogo

recognition boosts the marketing efforts of” athletes’ personal brands as

well as their sponsor brands.

In today’s social climate, “companies often

seek athletes who [not] only market their brand, but also [appeal to] their

[consumers’ political or social positions].”

The pertinent question

becomes: Who owns the intellectual property behind these trademarks and

personal brands?

Ownership may depend on who designed or developed

the logo.

In some cases, companies approach an athlete that already has a

personal brand and possibly a trademark, and in other cases, these

companies help develop the player’s platform and brand.

Many of the recent and most recognizable cases involving these

types of trademarks have come from established professional athletes

since they were the only athletes able to earn from their name and

https://money.cnn.com/2016/08/19/news/trademarks-athletes-usain-bolt-

olympics/; see also Igor, supra note 1 (discussing the various business-related

benefits that come with a professional logo) Because these athletes are often seen

on “TV commercials, print ads, . . . and special events” and are always acting as

a brand or endorser, “a logo brings everything together” for the athlete, making it

easy to associate a variety of brands with one individual. Igor, supra note 1.

Igor, supra note 1.

Id.

See Vejay Lalla & Albert Tawil, The Evolving Relationship Between

Brands and Athletes: What Comes Next?, JD SUPRA (Dec. 3, 2020),

https://www.jdsupra.com/legalnews/the-evolving-relationship-between-23655/

(discussing the current trend of athletes’ “realiz[ing] their voices matter on and

off the field,” leading to their speaking out and furthering both their own and their

endorser’s brands); see also Michael A. Rueda & Gregory Pun, Athlete Activism

Is Changing Partnerships with Brands, WITHERSWORLDWIDE,

https://www.withersworldwide.com/en-gb/insight/athlete-activism-is-changing-

partnerships-with-brands (Sept. 27, 2018) (discussing Nike, Inc.’s deal with Colin

Kaepernick after his national anthem protest, making him “a face of the 30th

anniversary commemoration of [its] ‘Just Do It’ campaign,” and Simone

Manuel’s deal with TYR Sport, Inc., which included an “inclusion rider”

provision “ensur[ing] that her partners extend meaningful opportunities to . . .

underrepresented groups and that diversity be reflected in” her partnership with

TYR).

See Lalla & Tawil, supra note 5.

Id. (addressing that ownership was historically determined by “which

party was driving the overall financial commitment,” but now may depend on

other factors like “whether [a] company is simply providing a platform for the

individual’s preexisting brand . . . [or] launching an individual’s brand for the first

time.”).

Id.

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IMPACT OF PERSONAL TRADEMARKS IN THE NCAA NIL AFTERMATH

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likeness.

That all changed in June of 2021 with the decision of NCAA v.

Alston, where the Court ruled against limiting education-related

compensation,

and the subsequent change in the National Collegiate

Athletic Association (NCAA) name, image, and likeness (NIL) policy,

where student-athletes are now able to earn off their name and likeness.

Due to the pressure from individual states’ policy decisions and the

Court’s ruling in Alston, the NCAA made this policy change regarding

NIL that it had long avoided, given its concerns about “blurring the lines

between amateur and professional” sports.

This decision opened a “new

category of personal athletic brands.”

Many junior athletes already have

an extensive social media following and now can sign endorsement deals

or create personal trademarked logos to further their brand.

Moving

forward, these junior athletes should be aware of their rights and weigh the

short-term prestige of signing an endorsement deal with the potential long-

term ramifications of losing ownership over their personal brands.

See id. (discussing the high-profile cases of Roger Federer and Kawhi

Leonard and the recent change extending rights to amateur athletes).

See Adarsh Annamaneni et al., An In-Depth Summary and Analysis of

the Important Alston Decision, NAT’L L. REV. (Aug. 17, 2021),

https://www.natlawreview.com/article/depth-summary-and-analysis-important-

alston-decision (discussing the likely impacts on universities and potential costs

of “gain[ing] a recruiting advantage [by] offer[ing] benefits . . . directly . . .

impact[ing] [the] prospective student-athletes”).

See Michelle Brutlag Hosick, NCAA Adopts Name, Likeness and

Image Policy NCAA (June 30, 2021, 4:20 PM),

http://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-

likeness-policy.aspx; Katie McInerney, What Is NIL? NCAA Rules Are Changing

Regarding Athlete Pay. Here’s What It Means, BOS. GLOBE,

https://www.bostonglobe.com/2021/06/30/sports/ncaa-nil-rules-change/ (July 2,

2021, 10:57 AM).

McInerney, supra note 11.

See Lalla & Tawil, supra note 5.

See id.; see also Jeremy M. Evans, Student-Athlete Brands in the Age

of Name, Image, and Likeness, A.B.A. (Dec. 1, 2020),

https://www.americanbar.org/groups/intellectual_property_law/publications/lan

dslide/2020-21/november-december/student-athlete-brands-age-name-image-

likeness/ (discussing the value of social media, where influencers are paid for

advertising to large numbers of followers, and noting that student-athletes are in

high-profile positions with great popularity and often large follower bases,

creating opportunities for monetary gain).

Lalla & Tawil, supra note 5; Rueda & Pun, supra note 5; see also

Evans, supra note 14 (discussing the value of social media where influencers are

paid for advertising to large numbers of followers is; student athletes are in high

profile positions with great popularity and often large follower bases, creating

opportunities for monetary gain).

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Personal athlete logos not only bring in money for the athletes, but

they also have a large economic impact on the marketing of popular brands

such as Nike and Under Armour.

When athletes with a previously

trademarked logo enter into a sponsorship relationship, the endorsement

company will have to pay for and license these marks in order to use them

on its clothing and products.

This is a trend that goes beyond the athletic

world as celebrities with established brands often partner with companies

to launch new products, etc., and license out their image, likeness, or

trademarks.

On the flip side, if the endorsement company designs and

trademarks the logo for the athlete, as was the case with Steph Curry and

Under Armour or Roger Federer and Nike, that company owns the rights.

The Supreme Court’s decision in NCAA v. Alston, indirectly implicating

name, image, and likeness,

puts companies in a position where they may

be forced to consider the licensing option.

With student-athletes having

an earlier start in launching their brands and creating their personal logos,

companies may have to use “revenue streams outside of . . . developing

and owning [the] athlete’s brand.”

See id. (“Under Armour is tapping into the goodwill underlying [Tom]

Brady’s name and likeness as well as his personal brand.”).

See Lalla & Tawil, supra note 5 (discussing the alternative methods a

company can pursue, such as in Under Armour’s case, where “Brady developed

[and trademarked] the TB12 brand on his own,” but the company, via licensing

agreement, is able to “[tap] into the goodwill underlying Brady’s name[,]

likeness[,] [and] personal brand”); see also Anthony J. Dreyer et al., In Brief:

Sponsorship and Image Rights of Professional Athletes in USA, LEXOLOGY (Aug.

28, 2020) https://www.lexology.com/library/detail.aspx?g=7cb19572-e467-

4c8e-a29c-f3a20c169645 (discussing how “[a]thletes commerciali[z]e their

publicity rights through licensing” and can contractually define how they want

their image or trademark to be used).

See Lalla & Tawil, supra note 5.

Id.

Corinne Zucker, Trademark Considerations for the NCAA’s NIL

Policy, SPORTS LITIG. ALERT (Dec. 17, 2021),

https://sportslitigationalert.com/trademark-considerations-for-the-ncaas-nil-

policy/.

Lalla & Tawil, supra note 5, (discussing the pertinence of NIL

intellectual property issues as the country shifts towards a decision “to allow

[student] athletes to monetize their name and likeness”); see also Zucker, supra

note 20 (arguing that trademark protection for a logo allows the athlete to decide

“where the logo appears, which other parties may use it, and how it may change

over the years”).

Id.

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To aid in understanding the prevalence of personal athlete logos

and the trend of ownership and design, Section II will outline the history

of this area of trademark law in the United States. It will provide

background on the theory of trademark ownership and the development of

this intellectual property discipline in the athletic and celebrity sphere.

Section II will look at the two common and distinct processes, a company-

designed logo versus an athlete-designed logo, and the modern trends in

this area. Moving on from this historical discussion, Section III will

examine the 2021 decision of NCAA v. Alston, the NCAA policy change

that followed, and the potential impacts of this decision on the intellectual

property and specifically the trademark law world. Finally, this will lead

into a discussion of the potential long-term economic impacts on

endorsement companies and how this shift will affect the economic

landscape of how athletic and other brands will pursue sponsorship and

personal athlete branding in the future. In conclusion, this examination

will highlight the perceivably strong impact Alston and the NIL policy

shift will have on athlete trademarks going forward, moving towards a

license-centric market.

II. HISTORY AND BACKGROUND

A. The Backdrop of Trademark Law for Logos

A trademark can come in a variety of forms; it can be a word or

name, such as “Nike”; a symbol, such as Nike’s swoosh; a slogan, such as

“just do it”; or even a number, color, shape, sound, or smell.

Trademarks

empower companies and individuals to protect their respective intellectual

property and act as a sort of badge to help customers, fans, and bystanders

recognize a person or brand.

These trademarks allow companies “to

build a reputation in the market and . . . [help them] retain loyal clientele

by instilling consumer confidence [in a product].”

The purpose of

trademarks is “largely economic and market-oriented”; trademarks are

Sport and Branding, WORLD INTELL. PROP. ORG.,

https://www.wipo.int/ip-sport/en/branding.html (last visited Sept. 17, 2022); see

also Trademark vs. Copyright: Everything You Need to Know, UPCOUNSEL,

https://www.upcounsel.com/trademark-vs-copyright (Nov. 11, 2020) (discussing

how a logo is both copyrightable and capable of obtaining trademark protection

because it is often used to distinguish one product from another); 15 U.S.C. §

1052(d) (enumerating categories of trademarks that cannot be registered).

See Sport and Branding, supra note 23 (describing trademarks as

“valuable assets” that “build trust, confidence[,] and loyalty in a product” and

“represent . . . a promise kept”).

Id.

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often considered private goods given that “if anyone other than the mark

owner simultaneously uses a particular trademark, this . . . interfere[s] with

the [owner’s] benefits.”

Although it is unnecessary to register a trademark to have

protection over it, registration with the U.S. Patent and Trademark Office

(USPTO) gives the owner added protection against infringers.

A mark

will fail the registration process if it falsely represents a connection with a

person or if it will cause confusion or deception regarding the ownership.

For a trademark to be registered, there must be an actual service behind

the mark.

Thus, a name or catchphrase cannot be trademarked unless it

is associated with a product or service.

A young athlete must first ensure

the mark is associated with something, such as themselves, and second,

they should register as soon as possible before others intentionally or

innocently register it before them.

Once your trademark is registered,

David W. Barnes, A New Economics of Trademarks, 5 NW. J. TECH.

& INTELL. PROP. 22, 22–23, 25 (2006) (discussing dilution law, where the more

people use a trademark, even in non-competing spheres, the less distinct that mark

becomes, and this interferes with the power of the trademark). Trademarks,

according to this article, are “impure public goods, with . . . uses that are rivalrous,

non-rivalrous, or congesting” Id. at 25.

See Julian Gonzalez, What Is the Difference Between a Logo and a

Trademark, GOLDSTEIN PAT. L., https://goldsteinpatentlaw.com/what-is-the-

difference-between-logo-and-trademark/ (last visited Sept. 27, 2022) (explaining

that individuals with a USPTO registered trademark may bring a trademark

infringement claim against an infringer in federal court, which may result in

damages and an injunction, while those without such registration may “still

acquire some common law rights [when they] use the logo in commerce in

connection with [their] business.”). The major difference with this unregistered

protection is often that it is limited to its specific geographic region. Id.

15 U.S.C. § 1052(a)–(d); see also 15 U.S.C. § 1062. The USPTO uses

an examiner to investigate the mark and determine whether it is in compliance

with all the requirements. 15 U.S.C. § 1062. Once the examiner approves the

trademark, it will last for ten years from the filing date before it must be renewed;

as long as the mark is continuously renewed, it can last forever. 15 U.S.C. §§

1058–59.

Josh Gerben, What Do Atheletes Need to Know About Registering a

Trademark, Gerben (Sep. 17, 2022, 12:55 PM),

https://www.gerbenlaw.com/blog/what-do-athletes-need-to-know-about-

registering-a-trademark/.

Id.

Id. (discussing Johnny Manziel and Jeremy Lin’s cases of “Johnny

Football” and “Linsanity,” where both respectively attempted to be trademarked

by ill-intentioned individuals; and while both athletes were able to successfully

appeal to the USPTO given the marks’ strong association with these athletes, it is

much safer to register as soon as possible).

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you can ensure that you and anyone you choose to license the rights to are

the only ones who can benefit from it.

Upon registration, your trademark

will be protected for 10 years and must be renewed at the 10-year mark to

retain protection; therefore, a trademark could last forever.

One of the most common areas of trademark intellectual property

is branding.

Branding is a vital part of business, and sporting companies,

endorsement brands, and athletes are no exception to this.

When a brand

uses a trademark that represents a person–such as a celebrity or an athlete–

it conveys that individual’s endorsement of the brand to the public.

Intellectual property rights, such as trademarks, provide a source of

protection for athletes and sports personalities against unauthorized use of

their name or image; it is a way for them to further their personal brand

and manage their image.

When a mark becomes famous, it garners even

more protection under federal law.

For instance, trademark dilution laws

protect famous marks like “Nike” and the Jordan logo by prohibiting their

use for unrelated goods and services.

Id.; see also Barnes, supra note 26, at 24 (discussing licenses as adding

a non-rivalrous and public component to trademarks, challenging the previously

mentioned private goods theory). Many consumers may use a trademark without

interfering with another’s use. Barnes, supra note 26, at 24. There are both

rivalrous and non-rivalrous uses of trademarks; the dominant search-cost theory

focuses on the benefit of consumers who recognize and refer to the trademark. Id.

15 U.S.C.S. § 1058.

Sport and Branding, supra note 23.

See also Barnes, supra note 26 (discussing the opportunity for sports

personalities to generate significant earnings from leveraging their own brand and

from sponsorship deals with brand owners. These athletes can register trademarks

to their names, nicknames, poses, slogans, signatures, and more, and beyond even

this protection, athletes often have image rights to prevent unauthorized use of

their NIL).

Sport and Branding, supra note 23.

Sport and Branding, supra note 23. See also 15 U.S.C.S. §§ 1125 (c)(1)

and c(2)(B(i)-(vi) (If a trademark becomes famous or extremely distinctive, it

could garner protection even against people using the mark in an area where there

is no confusion or competition, and if a mark is widely recognized by consumers

as a source of a good, it may be famous, and courts will look to a variety of factors

to determine the dilution of the mark).

Overview of Trademark Law, Intellectual Property in Cyberspace:

Library Catalogue [in small caps],

https://cyber.harvard.edu/metaschool/fisher/domain/tm.htm#8 (Last visited Sept.

20, 2022). Federal courts look to a variety of dilution factors, but under state law,

a mark need not be famous for the owner to bring a dilution claim; the mark must

only have selling power and the two marks must be substantially similar. Id.

See id.

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B. History of Athletic Logos

Trademarks are a common way for individuals to earn from their

intellectual property,

including their art and design, name, or initials.

Athletic careers are typically short, thus, the earning life of an athlete may

be short.

Intellectual property rights allow athletes to continue earning

from their likenesses in perpetuity.

Athletes can trademark their

signatures,

names, slogans,

and logos.

The phenomenon of

trademarking athletes’ logos began in 1984 when Nike created the

“Jumpman” logo for Michael Jordan based on a LIFE Magazine

Matal v. Tam, 137 S.Ct. 1744, 1764 (2017) (acknowledging

trademarks’ commercial function).

Gonzalez, supra note 27; see also Personal Logos of the Top 4 in

Men’s Tennis, TONI MARINO, https://tonimarino.co.uk/personal-logos-of-the-

top-4-in-mens-tennis/ (last visited Sept. 20, 2022). While it is more common for

athletes to build personal brands around initials or numbers, the nickname of

Rafael Nadal, a professional tennis player, inspired his logo. Personal Logos of

the Top 4 in Men’s Tennis, supra note 41. Early in his career, the public gave

Nadal the nickname Raging Bull, so Nike created a simple logo of two lightning

bolts resembling a bull head. Id.

Judy Martel, Pro Athletes: How To Navigate Short Careers, Long

Retirements, FORBES (Jul. 17, 2015),

https://www.forbes.com/sites/rbcwealthmanagement/2015/07/17/pro-athletes-

how-to-navigate-short-careers-long-retirements/?sh=dce4c0769802 (stating that

the average major sport career lasts less than six years).

Abby R. Glaus, The Intersection of Trademark Law, Athletes, and

Money: A “Three-Peat®”, 32 MARQ. SPORTS L. REV. 583, 593–94 (2022) (“The

perpetuity of a trademark is . . . as long as it is used in commerce . . . . [T]his

blocks others' right to protection for a lifetime or more.”).

Ahiza Garcia, Pro athletes and the things they trademark, CNN

MONEY (Aug. 29, 2019, 12:39 PM),

https://money.cnn.com/2016/08/19/news/trademarks-athletes-usain-bolt-

olympics/.

Gerben, supra note 29.

See Chris Dolmetsch & Christopher Yasiejko, Pro Athletes Like the

‘Greek Freak’ Are Going After Trademark Violators, BLOOMBERG (Dec. 20,

2021), https://www.bloomberg.com/news/articles/2021-12-20/pro-athletes-like-

nba-s-greek-freak-are-suing-trademark-violators (discussing how generic phrases

and slogans can be difficult to trademark, as Lebron James found when he

unsuccessfully tried to trademark “Taco Tuesday,” but some less generic phrases

can garner protection, such as Green Bay Packers lineman Rashan Gary’s

trademark for “Put Cheese On Everything”).

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photograph.

Brands then realized the potential that particular athletes had

in leveraging sales and products through their individualizations.

The monogram is one of the oldest forms of graphic identity;

the Middle Ages, artists commonly marked their art with monograms,

which were protected against infringement.

According to U.S. trademark

data, initials appear today in sports logos 13% more than any other

trademarks.

Today, athletes commonly use this monogram-style

marking, often combining their initials with their uniform numbers to form

a logo that is nearly illegible but unique to that individual.

Victor Santo, Get to Know a Brief History About Athletes Logos,

STREETOPIA (Jan. 21, 2021),

https://www.streetopia.me/m/news/600a3bb1ed270b452919a112/get-to-know-a-

brief-history-about-athletes-logos; Nike Trademarks: Everything You Need to

Know, UPCOUNSEL (Jun. 30, 2020), https://www.upcounsel.com/nike-

trademarks; see also Rentmeester v. Nike Inc., 883 F.3d 1111, 1116 (9th Cir.

2018). In 1984, Jacobus Rentmeester photographed Jordan in midair as he was

about to dunk. Id. Rentmeester later claimed that Nike paid him for temporary use

of this image, and he sued for infringement due to their extended use. Id.

Ultimately, Nike paid the photographer $15,000 to continue using the image for

two years in North America; all other rights still belonged to Rentmeester. Id. In

1987, Nike commissioned its own photograph of Jordan and used that photo to

create the famous logo. Id. Nike succeeded against Rentmeester in subsequent

lawsuits because the court found that the new image was unmistakably different

in material details. Id.

Santo, supra note 47.

Nancy Sharon Collins, The Modern Monogram: A Historic Survey of

Ciphers, Marks and Monograms, PRINT (Aug. 6. 2019),

https://www.printmag.com/culturally-related-design/the-modern-monogram-a-

historic-survey-of-ciphers-marks-and-monograms/.

Edward S. Rogers, Some Historical Matter concerning Trade-Marks,

9 MICH L. REV. 29, 32–33 (1910).

James Bowie, Why Colleges are Recruiting Student Athletes with

Personalized Logos, MEDIUM (Jul. 6, 2021), https://marker.medium.com/why-

college-athletes-are-suddenly-adopting-personal-logos-4478a6b00f46

(discussing the trend of thick lines that jut off at sharp angles making a difficult-

to-read monogram).

Id. (discussing the common expression of thick lines that jut off at

rakish angles to create an initial that requires the onlooker to decipher); see also

Personal Logos of the Top 4 in Men’s Tennis, TONI MARINO,

https://tonimarino.co.uk/personal-logos-of-the-top-4-in-mens-tennis/ (discussing

professional tennis player, Andy Murray, who had his logo designed by Aesop

Agency. It was initially just going to appear on his court bag and training t-shirts.

That then led to his logo appearing on a variety of Under Armour products after

he signed an endorsement deal. His logo is unique because it spells out his

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In 2006, Roger Federer first wore his “RF” initials, a concept that

originated with his wife who used it for a fragrance in 2003.

Federer

wished to retain that “RF” logo after the fragrance was discontinued, so

Nike modified the design and created the “RF” logo that we know today.

Due to Nike’s modification of the design and their control over the

process, they trademarked the “RF” logo and had full ownership over it.

Over the next 12 years, Nike sold hats, shirts, and other paraphernalia with

the “RF” logo.

When Federer parted ways with Nike and signed a new

ten-year endorsement deal with UNIQLO, his “RF” mark stayed with

Nike, against his will.

Federer was left without his logo and Nike was

left in a difficult position of not wanting to lose its asset while also not

wanting to risk liability of misleading the public by selling items with the

mark, which might risk adverse publicity and loss of the fan base Nike had

acquired.

Ultimately, Federer purchased the trademark from Nike

through his Swiss company, Tenro AG, for a high price and now licenses

it to UNIQLO for use on his current athletic apparel, hats, and shoes.

In a similar situation in 2019, Kawhi Leonard, a member of the

Los Angeles Clippers, filed suit against Nike over the rights to his “Klaw”

logo.

Leonard had designed a version of the logo eight years prior and

forwarded his design to Nike when they reached out wanting to make a

logo for him.

Nike designed and obtained a registered copyright on their

monogram, “AM,” but also displays the number 77, the number of years it took

for a British tennis player to win Wimbledon, which he did in 2013.).

Tom Collins, Advantage Federer: Return of the “RF” Logo, STEVENS

& BOLTON (Dec. 8, 2020), https://www.stevens-

bolton.com/site/insights/articles/advantage-federer-return-of-the-rf-logo.

Id.

Id. (discussing Nike’s trademark registrations in various jurisdictions,

including the UK in 2008 and the EU in 2009).

Id. (discussing the UK/EU laws where a trademark may be cancelled

if the registration is liable to mislead the public, and further, any use of Federer’s

name by Nike would risk infringing on the “Roger Federer” trademark owner by

him personally).

Id.

Ella Chochrek, Nike Scores Partial Win Against Kawhi Leonard Over

Claw Logo, FOOTWEAR NEWS (May 20, 2020, 11:26AM),

https://footwearnews.com/2020/business/legal-news/nike-kawhi-leonard-claw-

logo-lawsuit-1202991746/.

Gaetano Urgo, Comment, Klawing for Protection: Kawhi Leonard’s

Battle with Nike over Intellectual Property Rights, 16 DEPAUL J. SPORTS L. 54,

65–66 (2020).

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own version of the “Klaw” based off of Leonard’s image and began using

it on merchandise.

Leonard wished to use the logo for commercial

purposes and in connection with his charities, but when he obtained

trademarks for it, Nike demanded a cease and desist of his use.

Nike

claimed that it was the exclusive owner of the design and all intellectual

property rights in the logo because the design was developed in-house on

a work for hire basis.

Upon suit, the court ruled in favor of Nike and

denied Leonard’s claim to the logo.

C. The Shift from Company-Designed to Athlete-Designed

This type of intellectual property ownership seen with Federer and

Leonard has been the norm among athletes and endorsement companies.

In recent years, Under Armour launched collaborations with Stephen

Curry and Jordan Spieth, filing trademarks for their “SC” and “JJS” logos

respectively.

Additionally, Nike has designed and retained ownership

rights over a plethora of athlete logos.

The Kawhi Leonard example is

one of the most recent to be read in the news, but some notable athlete

logos that Nike owns include: Michael Jordan, Lebron James, Kevin

Durant, Rafael Nadal, Naomi Osaka, Kyrie Irving, and Ken Griffey Jr.,

among many others.

It may seem more natural for these logos to belong

to the individual that they represent, but this is often not the case.

The

Federer situation is a prime example of having to buy back the right to a

logo that represents your initials, a logo that your fame made popular; it

may seem backward, but this has long been the dominant method.

The

issue for an athlete is whether there is a clear mechanism for an athlete to

Id. at 66.

Id.

Id. at 71.

Julia Schroeder, The “#RFcapisback?”: What the Fight over Roger

Federer’s Iconic Logo Highlights About Protecting Personal Brands, MIA. BUS.

L. REV.: UMBLR INSIGHTS (Feb. 22, 2021), https://business-law-

review.law.miami.edu/rfcapisback-fight-roger-federers-iconic-logo-highlights-

protecting-personal-brands/.

Collins, supra note 53.

Id.

Nike Trademarks, GERBEN LAW,

https://www.gerbenlaw.com/trademarks/footwear/nike/ (last visited Feb. 9,

2022).

Schroeder, supra note 66 (noting the importance for young athletes to

be aware of the implications that come with contracting their personal identities).

Id.

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regain ownership once the relationship potentially ends.

Federer faced

this reality and had to pay a large sum, leading the public to believe

athletes may push to have more control moving forward.

While it is historically more common for these sponsorship

companies to design logos and retain trademark rights, there has been a

modern shift towards the athletes creating and marketing their own

brand.

Tom Brady is an example of this, as he developed his own TB12

logo and brand.

Rather than relying on an endorsement company to

develop his brand, companies must instead compensate Brady for using

his personal brand to further their own business.

Similarly, professional

basketball player Giannis Antetokounmpo, who obtained a trademark on

the phrase “The Greek Freak,” is now able to police unlicensed “Greek

Freak” branded goods for infringement.

Finally, while the original Tiger

Woods logo was designed and owned by Nike, Woods now holds the

ownership rights over the logo’s redesign.

As shown by the prior

examples, when an athlete registers their logo as a trademark, the athlete

Id.

Collins, supra note 53.

Lalla and Tawil, supra note 5; see also, Collin Binkley, More NCAA

athletes seek own trademarks, THE DETROIT NEWS, (Aug. 27, 2015)

https://www.detroitnews.com/story/business/2015/08/27/college-sports-

trademarks/32477447/ (discussing how in professional sports, athletes regularly

monikers to be used on endorsement company merchandise for hefty sums). A

few examples discussed include Marshawn Lynch’s “Beast Mode,” Jeremy Lin’s

“Linsanity,” and Tim Tebow’s “Tebowing.” Binkley, supra note 74.

Lalla and Tawil, supra note 5 (discussing Under Armour’s

endorsement deal where they sell certain TB12 branded apparel).

Id. (stating that this business model is becoming more common not

just in sports but in the celebrity consumer world where individuals are partnering

with larger brands).

Id.; see also, Chris Dolmetsch and Christopher Yasiejko, Pro Athletes

Like the ‘Greek Freak’ Are Going After Trademark Violators, BLOOMBERG (Dec.

20, 2021), https://www.bloomberg.com/news/articles/2021-12-20/pro-athletes-

like-nba-s-greek-freak-are-suing-trademark-violators. This article notes that

Antetokounmpo has sued sellers of shower curtains, a spice blend, and cartoon

stickers, all selling under his Greek Freak trademark without authorization.

Dolmetsch & Yasiejko, supra note 77. Interestingly, the spice blend did not

qualify as counterfeiting given Antetokounmpo’s mark is not registered in any

class relating to food, and a reasonable consumer wouldn’t be tricked into thinking

they’re buying a genuine Greek Freak spice blend. Id.

Matthew Price, The 8 best logos of professional athletes, 99DESIGNS,

https://99designs.com/blog/logo-branding/best-logos-professional-athletes/ (last

visited Sept. 20 2022) (discussing that Tiger Woods created this new logo to

separate his brand from Nike since they no longer make golf equipment).

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has control; they decide where the logo appears and who may license it for

use on their product.

Finally, amateur student-athletes historically have not had the

opportunity to earn off their likeness.

While professional athletes could

trademark their personal logos, monetize their brand, sign endorsement

contracts, and earn off their name—college athletes were previously

unable to accept endorsement-based, non-educational monetary benefits.

The NCAA prohibited its athletes from accepting any outside money,

believing scholarships and stipends were sufficient.

All of this changed

in 2021 after years of pushback against the NCAA’s Name, Image, and

Likeness policy.

III. THE IMPACT OF NAME, IMAGE, & LIKENESS DEVELOPMENT

Up to this point, we have discussed the historical and legal

backdrop to personal branding in athletic trademarks.

We have addressed

the trend towards athletes taking control and ownership over their

trademarks,

but what kinds of effects might this have on the endorsement

landscape? Further, an interesting development arose in the past year that

will likely overhaul the way young athletes look at their personal brand

and change their strategy moving forward.

In June of 2021, the United

States Supreme Court (SCOTUS) upheld the Ninth Circuit’s decision

stating the NCAA cannot limit any benefits to student-athletes related to

education.

This decision indicated that the NCAA’s amateurism model

is cracking, and SCOTUS will be on the student-athlete’s side in the

future.

It did not take long for the NCAA to succumb to the State by State

Ed Mantilla, Name, Image, Likeness, And Interplay With Intellectual

Property, JDSUPRA (Jul. 8, 2021), https://www.jdsupra.com/legalnews/name-

image-likeness-and-interplay-with-5098268/.

McIerney, supra note 11.

Id.

See generally, supra Part II.

See generally, supra Part II.C

The U.S. Supreme Court NINE, the NCAA NIL!, STRADLEY RONAN 1,

2 (Aug. 9, 2021), https://www.stradley.com/-

/media/files/publications/2021/08/client-alert-ip-education-august-9-2021.pdf

Adarsh Annamaneni et al., An In-Depth Summary and Analysis of the

Important Alston Decision, 11 THE NAT’L L. REV. (Aug. 17, 2021),

https://www.natlawreview.com/article/depth-summary-and-analysis-important-

alston-decision.

Id.

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pressure and the Alston decision, and change its long-standing policy on

college athletes’ ability to earn off their name, image, and likeness. How

will this decision add to the above-mentioned trend? What kind of

economic impact may this shift, the Alston decision, and the NIL policy

change have on endorsement brand companies? This next section will

attempt to answer these questions.

A. The Significance of the NIL Decision

The United States Supreme Court in NCAA v. Alston upheld the

district court’s order enjoining the NCAA from enforcing limits on

education-related benefits, basically making for less restrictive rules

related to educational benefits.

The NCAA is still able to restrict non-

education-related compensation to their athletes, but this case lays the

groundwork for a potential future challenge to this restriction as well.

Before the Alston decision, compensation was limited to the cost of

attendance, so benefits unrelated to education as well as benefits tied to

education were restricted.

Although the purposeful lack of pay separates

amateur college sports from professional sports, there has been much

debate about whether college athletes should be compensated in some way

for the revenue they bring to a university.

The district court in Alston

agreed that there was a purpose for limiting compensation, keeping college

and professional athletics separate, but concluded that the NCAA could

limit compensation through less restrictive means, a theory that the

Supreme Court affirmed.

According to the Court, since education-related

benefits are clearly different from professional athletic compensation,

there should not be limits on these benefits.

Both the district court and

the Ninth Circuit found a need to craft a balance that prevents

anticompetitive harm to student-athletes while still preserving the amateur

aspect of the sport.

Supreme Court Justice Kavanaugh stated in his

concurrence that “[n]owhere else in America can businesses get away with

agreeing not to pay their workers a fair market rate on the theory that their

product is defined by not paying their workers a fair market rate . . . The

NCAA is not above the law.”

Zucker, supra note 20.

NCAA v. Alston, 135 HARV. L. REV. 471, 471 (2021).

Id. at 471–72.

Id. at 480.

Id. at 473–74.

NCAA v. Alston, supra note 90.

Id.

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This case marked the first time the Supreme Court stated that the

NCAA compensation rules were subject to the rule of reason test under

the Sherman Act.

This test requires an analysis of the relevant product

and geographic market, the market power of the defendants in the relevant

market, and the existence of anticompetitive effects.

The Court

essentially shifts the burden onto the defendants to show a procompetitive

justification.

The NCAA has one sole justification for its remaining

rules—they enhance college athletics by distinguishing them from their

professional counterparts.

100

This justification fails to satisfy the second

prong of the above mentioned rule to reason test.

101

The Supreme Court

established that “antitrust rules do apply to labor market rules in collegiate

athletics.”

102

Due to the introduction of this test by the Court, and the clear

failure by the NCAA, there is room for more changes in the future.

103

Justice Kavanaugh’s concurrence even seems to invite a challenge on the

remaining rules, foreshadowing more significant changes moving

forward.

104

It did not take long before the NCAA took notice of the changing

landscape.

105

Just days after this ruling, there was a hearing in the case of

House v. NCAA which resulted in the NCAA implementing an interim

policy that suspended the NCAA NIL rules for incoming and current

student-athletes. This ruling allows these athletes to make money from a

variety of business ventures and not lose their eligibility.

106

While this new

Id.

Antitrust Standards of Review: The Per Se, Rule of Reason, and Quick

Look Tests, BONALAW (last visited Sept. 25, 2022),

https://www.bonalaw.com/insights/legal-resources/antitrust-standards-of-

review-the-per-se-rule-of-reason-and-quick-look-tests.

NCAA v. Alston, supra note 90.

100

Id.

101

Id.

102

Id.

103

Id.

104

Id.

105

NCAA v. Alston, supra note 90.

106

Id.; see also The U.S. Supreme Court Nine, the NCAA NIL!,

STRADLEY RONON (Aug. 9, 2021),

https://www.stradley.com/insights/publications/2021/08/ip-and-education-client-

alert-august-2021; Michelle Hosick, NCAA Adopts Interim Name, Image and

Likeness Policy, NCAA (Jun. 30, 2021, 4:20 PM),

https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-

likeness-policy.aspx (the NIL policy includes: individuals can engage in NIL

activities consistent with state law, college athletes in a state without an NIL law

can engage in the activities without violating the NCAA rules, the student-athletes

BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XVI

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policy does preserve the fact that college sports are not pay-for-play, for

the first time, the door is open for student-athletes to monetize their brand

and earn off of their likeness.

107

Students are still unable to monetize their

time on the field or court, but the restrictions are looser than ever.

108

The

Alston decision pushed this pay-for-play concept closer to fruition; only

time will tell where the NCAA rules expand.

109

This NIL policy change was perhaps the biggest change to ever

occur in college athletics, and it opened the world of endorsements,

compensation, and sponsored social media content.

110

The policy, often

referred to as NIL, standing for “name, image, and likeness,” allows

college athletes at every level to earn off their name, image, or likeness.

111

Examples of NIL activities include advertising for a business, autographs,

personal appearances, sale of merchandise with the athlete’s NIL, or

representation in movies or video games.

112

Part of this could come from

trademarks, which allow consumers to associate a brand with a particular

good or service; it’s a way for these young athletes to license out and

develop their brand.

113

Following this NCAA NIL policy in the wake of

the Alston decision, student-athletes are no longer amateurs when it comes

to building their brand through intellectual property.

114

More than 450,000

can use NIL professional service providers, and they should report their NIL

activities to their school).

107

Id.

108

NCAA v. Alston, supra note 90.

109

See id.

110

McInerney, supra note 11; see also Christopher Pham et al.,

Maximizing Your Worth: Name, Image and Likeness (NIL) Rights in Amateur

Athletics, FREDRIKSON & BYRON (Jul. 29, 2021),

https://www.fredlaw.com/news__media/maximizing-your-worth-in-amateur-

athletics/. The authors note that the beginning of this shift occurred in 2009

following UCLA basketball player’s lawsuit). Pham et. al., supra note 110.

Former UCLA basketball player Ed O’Bannon sued the NCAA arguing that

men’s Division I football and basketball players should be compensated for the

use of their NIL in the NCAA Basketball and NCAA Football video games. Id.

The Ninth Circuit found in O’Bannon’s favor in 2015, and while they stopped

producing these video games, the ruling that they violated the Sherman Antitrust

Act opened the door for further change. Id.

111

McInerney, supra note 11.

112

Katlyn Andrews and Kyra Castano, The Future of Name, Image and

Likeness in Higher Education, BAKERTILLY (May 25, 2021),

https://www.bakertilly.com/insights/the-future-of-name-image-and-likeness-in-

higher-education.

113

See id.; see, e.g., Collins, supra note 53.

114

See Andrews & Castano, supra note 112.

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student-athletes are now facing this transition, and it appears that the

student-athlete experience is forever changed.

115

As of January of 2022, the NCAA Board of Governors approved

a newly proposed constitution placing more NIL policy authority in the

hands of universities and conferences.

116

Most universities are expected to

permit NIL deals, but various policies will likely soon be implemented to

restrict access to certain NIL opportunities.

117

This policy change comes

three years after California passed its Fair Pay to Play Act, which “made

it illegal for state schools to prohibit athletes from [earning] off their

[NIL].”

118

This law will not be enacted until 2023, but it clearly oversteps

prior NCAA rules.

119

Since the California decision, nineteen other states

have passed similar NIL laws (some of which have already gone into

effect) and others that will be enacted between now and 2025.

120

The

NCAA has been pressured and pushed into this policy change, likely to try

to preempt these state laws and make its own guidelines reflect the trend.

121

Given the NCAA was unable to prompt Congress to pass a nationwide

NIL law, states have full control over their NIL policies, and some states

would thus have a strong advantage in future recruitment.

122

The NCAA

has followed suit to avoid these unfair advantages and stay ahead of the

nationwide trend.

123

This policy does not allow athletes to accept payments

by specific athletic programs as incentives, and it does not allow schools

115

STRADLEY RONON, supra note 106.

116

Skyler Hicks, What Brands Can Expect from College Sports’ Ever

Evolving NIL Landscape, THE NATIONAL LAW REVIEW (Jan. 20, 2022),

https://www.natlawreview.com/article/what-brands-can-expect-college-sports-

ever-evolving-nil-landscape.

117

Id. (discussing that BYU, for instance, is requiring student NIL deals

to adhere to their honor code, prohibiting the promotion of alcohol, tobacco, or

caffeine products).

118

McInerney, supra note 11.

119

Id.

120

Id. (discussing seven states—Alabama, Florida, Georgia, Kentucky,

Mississippi, New Mexico, and Texas—which immediately implemented this into

law within a week of the NIL policy change).

121

Id.; see also Dan Murphy, Schools Brokering Name, Image and

Likeness Deals Adds Layer to College Conundrum, ESPN (Feb. 7, 2022),

https://www.espn.com/college-football/story/_/id/33229931/schools-brokering-

name-image-likeness-deals-adds-layer-college-conundrum (discussing the

implications of the new NIL changes in college sports).

122

McInerney, supra note 11 (discussing the significant edge that

schools in eight states with new laws in 2021 would gain when it came to

recruiting top athletes who wanted to profit off the NIL immediately).

123

Id.

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to pay their athletes directly for nonacademic purposes.

124

Further, athletes

are mostly unable to use their university’s intellectual property in

conjunction with their name; instead, it is strictly the athlete’s name,

image, and likeness that they can benefit from.

125

The NCAA has long been concerned about changing this policy,

primarily because they fear blurring the line between amateur and

professional sports.

126

The claim has been that consumers enjoy college

sports because they are unpaid amateurs and the ability to earn off NIL

could negatively affect the competitive balance.

127

On the flip side, there

lies an argument that it will strengthen the level of college play due to the

incentives to stay and compete at the college level.

128

Beginning on July 1, 2021, when this policy was set in place,

student-athletes began taking advantage of the NIL opportunities at their

124

Id.; see also Zach Braziller, NCAA Changes College Sports Forever:

‘An Entirely New Landscape’, N.Y. POST (June 30, 2021),

https://nypost.com/2021/06/30/ncaas-new-nil-rule-changes-everything/

(discussing how this policy change has a variety of guidelines, including: “deals

cannot serve as recruiting inducements[;] athletes cannot receive benefits without

services given[;] agents or representation are allowed for NIL benefits[;] schools

cannot be involved in creating opportunities for their athletes[;] and players

cannot promote alcohol, legal drugs like cannabis, tobacco products, adult

entertainment, or gambling.”).

125

McInerney, supra note 11; see also Hicks, supra note 116 (discussing

how these NIL deals range from massive six figure deals to hundred dollar deals

to even non-cash compensation).

126

NCAA v. Alston, supra note 90, at 473.

127

Id. at 476.

128

See Braziller, supra note 124 (discussing how many high school

basketball prospects have recently decided to earn money in the G-League rather

than play a year in college); see also Hagens Berman: Expanded Class-Action

Lawsuit Against the NCAA Seeks Broader Damages for College Athletes Denied

Name, Image and Likeness Rights, ACROFAN (July 28, 2021, 9:23 AM),

https://us.acrofan.com/detail.php?number=507277 (discussing the various

agreements student athletes have entered into, including “clothing brands,

beverage companies, restaurants, cell phone companies, video games,” and local

retailers). If high school athletes had the ability to earn money while in college,

perhaps some of these athletes would have chosen college instead. Braziller, supra

note 124. Similarly, earning money while in school and raising their draft stock

could college a more attractive option for football players and keep them in school

for an extra year. Id. Former Ohio State University quarterback Cardale Jones said

he would have stayed for a fifth year if the NIL laws were different back when he

decided to go pro, believing he would have made more money as a household

name in his college town than he did being selected low in the draft. Id.

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fingertips.

129

These student-athletes quickly utilized trademarks, unveiling

personal logos via social media.

130

They have taken a cue from

professional athletes who seem to all have a personal logo today, and

similar to many before them, have trademarked some version of their

monogram.

131

Within a few weeks of the decision, the quarterbacks for

Wisconsin and Oklahoma Football, respectively, filed trademarks for

logos related to their names.

132

These two athletes, and the plethora of

others who have done the same, may never make it in the NFL, but these

early trademarks allow them to start earning off their likeness with the

amount of stardom they currently have.

133

Some colleges have already

started designing logos for their athletes; USC designed logos for their

entire men’s basketball roster, and Texas and Oklahoma did the same for

their incoming football players.

134

Since this NIL decision, colleges are

129

Berman, supra note 128 (discussing the various agreements student-

athletes have entered into, including clothing brands, beverage companies,

restaurants, cell phone companies, video games, and local retailers); see also

Braziller, supra note 124 (discussing how these athletes “can monetize their social

media followings, brand themselves or host a sports clinic, sign autographs, or

make paid appearances, appear in commercials or endorse products”).

130

Bowie, supra note 51; see also Evans, supra note 14 (discussing how

trademark protection over an athlete’s personal brand may have the added positive

impact of showing corporate responsibility, making them more valuable brand

partners to sponsors).

131

Bowie, supra note 51.

132

Brendan Menapace, College Athletes are Already Gearing Up for

Merchandise After Supreme Court NCAA Ruling, PROMO MARKETING (July 1,

2021), https://magazine.promomarketing.com/article/college-athletes-are-

already-gearing-up-for-merchandise-after-supreme-courts-ncaa-ruling/.

133

Id.; see also Shanna McCarriston, Bronny James, Lebron James’ 17-

Year-Old-Son, Files Trademarks for NFTs, Clothing Apparel and Video games,

CBS SPORTS (Feb. 3, 2022, 1:20 PM),

https://www.cbssports.com/nba/news/bronny-james-lebron-james-17-year-old-

son-files-trademarks-for-nfts-clothing-apparel-and-video-games/ (discussing

how Bronny James, Lebron James’ son, recently filed three trademark

applications for “Bronny,” “Bronald,” and monogram-type logo of stylized letters

“BJ JR” as a seventeen-year-old high school Junior. These trademark applications

include uses in multimedia entertainment services, clothing, and potential future

NFTs.)

134

Bowie, supra note 51; see also Dan Murphy, Schools brokering name,

image and likeness deals adds layer to college conundrum, ESPN (Feb. 7, 2022)

https://www.espn.com/college-football/story/_/id/33229931/schools-brokering-

name-image-likeness-deals-adds-layer-college-conundrum (discussing how BYU

became the first school to broker a full teamwide deal for its athletes, when a BYU

alum and CEO of a protein bar company offered to give endorsement deals to

each of the team’s walk-on players so that they could cover tuition and the Athletic

BUSINESS, ENTREPRENEURSHIP & THE LAW VOL. XVI

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having to pivot their brand consulting to attract new players and help them

build their personal brands.

135

While very few players will actually earn

off of their trademarked logo—only those with the star power to sell

items—this creates for those star players an early branding platform that

will carry over into their potential professional careers and future

endorsement deals.

136

A college athlete’s name is the first thing the public will recognize

and perhaps associate with a brand; therefore, these athletes should create

a sound trademark strategy around their name.

137

A strong trademark

strategy allows athletes to control how their name is used and protect

themselves against undesired uses and associations, however they must

ensure that the trademark be used in commerce to receive protection.

138

Another added consideration is the endorsement company’s

market strategies.

139

In addition to the athletes’ ability to earn non-

educational funding since the Alston decision and NCAA NIL policy shift,

companies are able to market on a wider scale.

140

Therefore, all of the

college student-athletes that have been approached for partnerships with

local companies, social media brands, clothing brands or shoe companies

Director of BYU has set up the details of endorsement deals and NIL opportunities

totaling more than $1 million for over 450 athletes in a range of sports).

135

Id.; see also, Leah Vann, Here’s how LSU baseball players are

starting to capitalize on NIL opportunities, THE ADVOCATE (Feb. 9, 2022 3:08

PM), https://www.theadvocate.com/baton_rouge/sports/lsu/article_5eb06be4-

89ec-11ec-8ffe-6b5b516a9e44.html (discussing how at LSU, some athletes are

working with “Blue Chip,” a consumer platform where athletes can design,

collaborate, and showcase their brand. Blue Chip’s executive director says they

sit for a thirty-to-sixty-minute design session with their athletes where they learn

about them and get to create a brand identity and logo for that athlete).

136

Id. (discussing how in all reality, everyone will think they should get

something, but most athletes won’t get anything); see also, Braziller, supra note

124 (discussing how multiple experts believe that elite athletes will earn into the

seven figures).

137

Zucker, supra note 20 (discussing the benefit of a logo making it

possible to connect a particular athlete’s logo to what a company might do).

138

Id.; Gonzalez, supra note 27.

139

See John Post, Small Business Owners See New Opportunities with

NIL Era in College Athletics, Talkbusiness (Sep. 1, 2021)

https://talkbusiness.net/2021/09/small-business-owners-see-new-opportunities-

with-nil-era-in-college-athletics/ (discussing the scramble of local businesses

securing endorsements with college athletes, from nutrition shops to moped

companies to law firms).

140

Id.

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can now accept these endorsements.

141

These athletes may already have a

logo prepared for these companies to license and may already have a base

of followers on social media.

142

Although this may take away from a large

company’s ability to own an athlete’s logo, it provides a huge new

platform for smaller companies to license and feature student-athlete

marketing tools that they couldn’t touch previously.

143

Small town

businesses such as car dealerships may not be able to afford a big celebrity

endorsement, but local college star athletes give them a new avenue of

advertising.

144

An MMA gym offered to pay the Miami football team to

promote his gym on social media, Degree Deodorant created a 5 million

dollar plan to give NIL endorsements, a Baylor Basketball player sold all

his gear after their 2021 championship, and twin Fresno State Basketball

players signed deals with Boost Mobile and Six Star nutrition.

145

Finally,

the Alabama quarterback is on track to earn one million dollars in

endorsement deals within the first year of this NCAA decision.

146

141

See id. (discussing the scramble of local businesses securing

endorsements with college athletes, from nutrition shops to moped companies to

law firms).

142

Austin Green, How local businesses, college athletes are taking

advantage of the NIL era, NATIONAL CENTER FOR BUSINESS JOURNALISM, (Oct.

20, 2021) https://businessjournalism.org/2021/10/how-local-businesses-college-

athletes-are-taking-advantage-of-the-nil-era/ (discussing how an athlete’s social

media affects their NIL earnings even more than their athletic performance, with

NIL compensation of over $11,000 for over 50,000 followers but only $300 for

under 5,000 followers); see also Evans, supra note 14 (discussing the difference

of college athlete brand partnerships on social media given sports are played

weekly or even daily; they are on television at least every week during college

sports season, growing their popularity quicker than many other brand

ambassadors could).

143

Green, supra note 142 (discussing the importance of community for

local vendors, seeing these NIL partners as community investment not just in the

present but in the future; further discussing the importance of local companies

sponsoring local student-athletes so that recruiting doesn’t shift towards the places

that they can get more endorsements).

144

Id. (discussing the massive new marketing opportunity for local

businesses, whether or not the ultimate return on investment is a success).

145

Lily Ford, Name, Image, Likeness: What’s Really Going On In The

NCAA, GMTM, (Oct. 30, 2021) https://gmtm.com/articles/whats-happening-

with-name-image-likeness-2021; see also Hayleigh Colombo, Here’s how much

money Ohio State athletes have made from NIL deals so far, COLUMBUS BUSINESS

FIRST, (Jan. 24, 2022),

https://www.bizjournals.com/columbus/news/2022/01/24/osu-athletes-nil-

deals.html (discussing how during the first six months of the rules’ existence, 220

Ohio State Athletes have earned a total of $2.98 million dollars in NIL deals).

146

Ford, supra note 145.

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appears as though this policy change may increase the number of sponsors

on the scene, opening up the field for smaller local sponsors.

147

Further, it

will increase the number of trademarks filed as every college athlete that

wishes to earn off their likeness has the opportunity to design and market

their brand—whether that’s with an endorsement giant like Nike or a

locally owned shop.

148

This NIL policy provides a great opportunity for athletes that

wouldn’t otherwise be considered profitable.

149

The policy doesn’t only

affect sports like football and basketball, but also likely allows swimmers,

gymnasts and track stars to develop and earn off of their own brands as

well.

150

It’s rare to make the NBA or NFL, but it’s even more rare to make

the Olympics or become relevant in a lesser-viewed sport; this opportunity

allows athletes to seize their college fame and monetize it.

151

Further, this

opportunity to earn off their personal brand may incentivize athletes to

remain with their collegiate team for longer before leaving to play

professionally.

152

These student-athletes have more time to develop their

own brand before going to the next level, and thus more time, for instance,

to create a solidified trademark logo before working with the endorsement

giants such as Nike or Adidas.

153

147

Hicks, supra note 116 (discussing how larger brands will look to

nationally known college athletes with large social media followings, but regional

companies should partner with athletes who are popular in their local market.

Further, these local companies should be careful not to offer contracts that could

be interpreted as incentivizing players to play for particular schools, a concern

that is more pertinent when looking at high school students or potential transfer

students); see also Braziller, supra note 124 (discussing where the CEO of an

influencer marketing company says there is a massive desire for Gen Z, early

millennial college-age audiences, and these young college athletes hit them better

than anyone).

148

See, e.g., Kaitlyn Tiffany, Why celebrities try to trademark their

catchphrases and baby names, VOX (Apr. 19, 2019) https://www.vox.com/the-

goods/2019/4/19/18507920/celebrity-trademark-history-baby-names-taylor-

swift. There has been a spike in trademark applications in recent years, with 6.7

million applications filed with the USPTO since 1985. However, one of the

fundamental rules in trademark law is “no hoarding of trademarks,” so while these

athletes will want to get their name and likeness protected, there’s a limit on how

much they can protect.

149

McInerney, supra note 11.

150

Id.

151

Id.

152

Id.; see also Ford, supra, note 145 (discussing the appeal, particularly

in basketball, to go to the draft after a year in college; this NIL policy could make

the athletes think more seriously about college since they can earn an income).

153

See Hicks, supra note 116; see, e.g., Ross Dellenger, New NIL Summit

Will Help College Athletes Optimize Opportunities, SPORTS ILLUSTRATED (Jan.

2023 WHO OWNS YOUR NAME? THE TREND AND ECONOMIC

IMPACT OF PERSONAL TRADEMARKS IN THE NCAA NIL AFTERMATH

161

Colleges around the country will also likely be changing their

strategy because of this NIL policy change and trademark trend.

154

Given

the absence of a national standard, state laws govern this NIL system, and

consequently, some states are more appealing for college athletes that want

to earn off their likeness.

155

For example, the University of Central Florida

created a website to get potential athletes to want to go to UCF in order to

build their brand; their tagline is “your brand is go for launch.”

156

Colleges

know the draw that this NIL policy is for future student-athletes, the idea

of trademarking their name or brand logo and earning off of it is probably

very enticing.

157

As seen above, some colleges have used logo design as a

recruiting tool; even if they don’t amount to profits, these trademarked

logos function as a “badge of legitimacy” for college athletes.

158

Some

colleges are even giving their athletes the opportunity to combine their

NIL with the school’s official trademarks in a sort of group licensing

program.

159

This creates an opportunity for cobranding—the athlete’s

individually owned trademark mixed with the university’s trademark—

and could be beneficial to them both.

160

23, 2022), https://www.si.com/college/2022/01/23/name-image-likeness-

summit-help-college-athletes-optimize-opportunities (discussing an opportunity

for student-athletes to learn about brand development). This June will feature the

first ever NIL summit to educate and award college athletes, hosted by the Student

Athlete NIL (SANIL) at the College Football Hall of Fame. Id. This event will

include panel discussions and brand representatives and will teach student-

athletes how to negotiate partnerships and most successfully earn off of their

likeness. Id.

154

McInerney, supra note 11.

155

Id.

156

UCF is ‘Go for LAUNCH’ to Support NIL Efforts, UCF (June 18,

2021), https://ucfknights.com/news/2021/6/18/general-your-brand-is-go-for-

launch.aspx.

157

McInerney, supra note 11.

158

Bowie, supra note 51 (discussing the connection between college

sports and graphic design; in luring new players, schools have designers to create

social media edits and facilitate brand engagement).

159

Matt Charboneau, Licensing Program Will Allow MSU Student-

Athletes to Use Logos, Trademarks in NIL Deals, THE DETROIT NEWS (Aug. 27,

2021), https://www.detroitnews.com/story/sports/college/michigan-state-

university/2021/08/27/licensing-program-allow-michigan-state-student-athletes-

use-logos-trademarks-nil-deals/5618268001/.

160

Id.

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162

Perhaps the most significant impact of this new policy, for the

sake of this article, is the earlier timeline of trademark registration.

161

The

primary recommendation by legal scholars for young student-athletes is to

file appropriate trademarks and protect their brand out of the gate.

162

These

trademarks should garner the necessary protection for an effective

branding campaign.

163

It is vital to evaluate each contractual arrangement

and intellectual property consideration in order to protect the athlete and

avoid future disputes.

164

Especially in cases where an athlete’s brand is

closely tied to their individual self—for instance, if their brand logo is a

monogram of their initials—it is beneficial for them to protect this brand

and trademark their logo early.

165

By designing, and even registering,

trademarks earlier, it will presumably continue the shift towards athletes

having greater ownership and control over the licensing process.

166

There

will be more and more deals like that of Tom Brady, where the athlete has

more leverage and sets up licensing agreements since the endorsement

company didn’t design and trademark the logo themselves.

167

Although

the company in question will not have ownership rights over the logo and

will have to pay licensing fees, it isn’t all negative for them.

168

If these

companies wish to develop an athlete’s brand and include the logo on their

products, they can obtain an exclusive license for the duration of the

deal.

169

Here, we avoid the situation that Leonard and Federer are in, where

their endorsement deal is over, but they do not retain their intellectual

property.

170

In those scenarios, Nike likely doesn’t have the right to

continue using the branding without creating consumer confusion and

facing reduced brand interest.

171

By designing, and potentially registering,

the athlete’s trademark and brand early, as a result of NIL, and not

requiring future endorsement companies to design a brand for them, the

161

See Mantilla, supra note 79.

162

See id.

163

Id.

164

See Lalla & Tawil, supra note 5.

165

Id.; see, e.g., Tiffany, supra note 148 (discussing how celebrities are

taking the idea of early trademarking to a new level with trademark registrations

for their children’s names: Kim Kardashian holds registration for each of her three

children’s names, Kylie Jenner filed for trademarks for “Stormi Webster” and

“Stormiworld,” and Beyonce filed for protection of her twins’ names, Rumi and

Sir Carter).

166

See Mantilla, supra note 79.

167

See Lalla & Tawil, supra note 5.

168

Id.

169

Id.

170

Id.

171

Id.

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IMPACT OF PERSONAL TRADEMARKS IN THE NCAA NIL AFTERMATH

163

parties can likely have a mutually beneficial relationship and avoid future

litigation.

172

B. The Economic Impact of the Shift from Ownership to Licensing

The value of a personal logo will vary greatly from athlete to

athlete depending on their level of fame, and we may consider both the

monetary value and personal value on a case-by-case basis.

173

The

“Jumpman” logo, owned by Nike and part of Michael Jordan’s brand, is

arguably the most famous athlete logo—bringing in roughly $3 billion

annually.

174

Similarly, LeBron James’ signature business and brand with

Nike, his crown logo products, generate an estimated $600 million per year

for the endorsement company.

175

These examples fall on the very high end

of the industry for personal logos, but they show the potential impact that

one athlete and their personal brand can have on a company such as

Nike.

176

Brand-specific elements and assets may account for 20–25% of a

company’s value.

177

For Roger Federer’s RF brand, which had a market

value of 27 million in 2018, the RF logo itself could be worth as much as

6.75 million.

178

It remains unknown what Federer paid to regain ownership

rights of his logo, but this estimate suggests he paid a high price.

179

Further, these athletes often have an emotional connection with their

logos, giving them independent value. For instance, Federer said, “I hope

172

See Lalla & Tawil, supra note 5.

173

Compare Jael Rucker, What is Michael Jordan’s Net Worth,

ONE37PM (Sep. 15, 2021, 3:30 PM),

https://www.one37pm.com/grind/entrepreneurs/what-is-michael-jordans-net-

worth (discussing how Jordan’s brand is the most impactful in sports history; he

still nets roughly $100 million per year in royalties from Nike), with The RF is

Back, THE FASHION LAW (Jan. 29, 2021), https://www.thefashionlaw.com/the-rf-

is-back-reflecting-on-the-making-popularizing-and-assigning-of-roger-federers-

famous-logo/.

174

Rucker, supra note 173 (discussing how Jordan’s brand is the most

impactful in sports history; he still nets roughly $100 million per year in royalties

from Nike).

175

Nick DePaula, Inside Nike’s New LeBron James Innovation Center,

ANDSCAPE (Nov. 11, 2021), https://andscape.com/features/inside-nikes-new-

lebron-james-innovation-center/.

176

See id.; Rucker, supra note 173.

177

THE FASHION LAW, supra note 173.

178

Id.

179

Id.

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164

rather sooner than later Nike can be nice and helpful in the process to bring

it over to me. It’s something that was very important for me.”

180

When an endorsement company designs and owns a trademark,

they have no further cost other than trademark renewal fees, and they

control whatever value the mark holds.

181

Even after an endorsement

relationship ends, the company has two options: shelf the logo or request

the athlete pay a sum of money to use it.

182

On the other hand, when an

athlete licenses their personally owned and trademarked logo to these

companies, the likes of Nike and Under Armour are left paying recurring

licensing fees.

183

Tom Brady, for example, received almost three million

dollars in licensing fees in one year alone.

184

The value of these licensing

fees, like the value of a logo itself, will vary greatly based on one’s fame,

but we can imagine the potential for an athlete to capitalize on their

trademark ownership and place endorsement companies in a weaker

position.

185

Athletes, along with musicians, artists, and other influencers,

are realizing the voices and platforms that they have and the ability to

empower their own brand.

186

This may demonstrate to them the economic

benefit of shifting away from the brands and towards the individual.

187

180

Id.; see also Jack Blakey & Jacob M. Davis, Leonard v Nike:

https://www.natlawreview.com/article/leonard-v-nike-copyright-klaw

(discussing how Kawhi put his heart and soul into this design and was

disappointed by the court’s ruling).

181

How much does it cost?, USPTO,

https://www.uspto.gov/trademarks/basics/how-much-does-it-cost (last visited

Sep. 25, 2020).

182

Urgo, supra note 61, at 72.

183

See, e.g., Jacopo Liguori, Athletes trademarks – how to handle,

WITHERSWORLDWIDE (May 6, 2020), https://www.withersworldwide.com/en-

gb/insight/athletes-trademarks-how-to-handle (discussing the opportunity for

athletes to choose their licensing policy and partners, setting up a contractual

framework to ensure proper appropriation, and making it possible to regain

control swiftly).

184

Douglas Charles, Tom Brady’s TB12 Company Received at Least

350K in PPP Loans, While Brady Made 3M Just From Licensing, BROBIBLE (Jul.

8, 2020), https://brobible.com/sports/article/tom-brady-tb12-received-ppp-loans/.

185

See generally, id.

186

See Lalla & Tawil, supra note 5 (discussing the trend of turning to

personal social media platforms to speak out, taking their brand into their own

hands).

187

See id.

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One final consideration in this realm is a company’s inability to

earn off of an athlete’s trademark post-contractual relationship.

188

As with

Federer, the logo’s close link to him as an athlete and his performances

reduced Nike’s interest in using the trademark after their working

relationship expired.

189

Many athletes hold the trademark rights to their

name and likeness, which complicates a company’s ownership over a logo

that signifies this name in the form of initials.

190

Using the logo without

the athlete's consent could give rise to a deceptive practices case, mislead

the public, and/or result in an invalid trademark.

191

This is why the court's

decision in Kawhi Leonard's case leaves Nike with a choice: force Leonard

to buy back the rights or shelf the logo.

192

Thus, there is an economic

question for the endorsement company: whether it’s worth keeping the

logo to prevent competition, which we see in Leonard’s case, or selling it

for a lump sum, as we see with Federer.

193

IV. CONCLUSION: HOW THE MODERN TREND AND NIL POLICY

WILL AFFECT THE TRADEMARK LANDSCAPE

The reason that athletes, whether professional or amateur, create

and trademark logos for their brand is to provide for themselves an earning

opportunity.

194

Historically, endorsement companies such as Nike,

Adidas, or Under Armour design, trademark, and thus own their sponsored

athlete’s logos.

195

This is the case for athletes like Michael Jordan, Lebron

James, Rafael Nadal, and in more contentious news, Roger Federer and

Kawhi Leonard.

196

We see from both Federer and Leonard the impact of

this trademark ownership as it prevented Leonard from claiming his

“Klaw” logo post-litigation and forced Federer to pay to regain his

rights.

197

Between the licensing fees and ownership control, a strategy such

as Tom Brady’s with his personally owned and created TB12, has become

a common trend.

198

The court decision in Alston and recent action taken

by state legislatures nearly forced the NCAA to adopt a dramatic policy

188

See Collins, supra note 53.

189

Id.

190

Id.

191

Id.

192

Urgo, supra note 61, at 72.

193

Id.; Collins, supra note 53.

194

See Igor, supra note 1.

195

See Lalla & Tawil, supra note 5.

196

See supra Part II.C.

197

Lalla & Tawil, supra note 5.

198

Lalla & Tawil, supra note 5.

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166

change — one that will likely have a large impact on this already-present

trademark ownership trend.

199

With the NCAA’s NIL policy change of

2021, college athletes have the right to monetize their name, image, and

likeness.

200

Thus, college athletes will likely start designing and

registering their logos and brands earlier than ever before.

201

By the time

college athletes enter the NFL or NBA or any other league, they could

already have an established brand.

202

This has the potential to only further

the already present trend towards athlete ownership and licensing

strategies with their sponsors.

199

Mantilla, supra note 79.

200

See id.

201

See id.

202

See id. (“The ‘Fair Pay to Play’ Act, which becomes effective in 2023,

guarantees college athletes a right to profit from their identities. The Act also

authorizes college athletes to hire agents and other representatives to assist them

in negotiating and securing commercial opportunities.”).