Trayvon Trademarks
Trayvon Martin’s mother, Sabrina Fulton, has applied for two U.S. trademark registrations related to her late son’s name: I AM TRAYVON and JUSTICE FOR TRAYVON – for “Digital materials, namely, CDs and DVDs featuring TRAYVON MARTIN; Digital media, namely, pre-recorded DVDs, downloadable audio and video recordings, and CDs featuring and promoting TRAYVON MARTIN; Digital media, namely, pre-recorded video cassettes, digital video discs, digital versatile discs, downloadable audio and video recordings, DVDs, and high definition digital discs featuring TRAYVON MARTIN; Digital media, namely, CDs and DVDs featuring TRAYVON MARTIN; DVD cases; DVD sleeves; DVDs featuring TRAYVON MARTIN.” The applications were filed with the U.S. Patent and Trademark Office on March 21, 2012.
On March 23, another application was filed for the proposed mark JUSTICE FOR TRAYVON by a Marcus R. Singletary in connection with “hooded sweatshirts.”
Should Trayvon’s Mom Have Filed These Applications?
There has been some controversy concerning Ms. Fulton’s applications. Was her intent to use her son’s name for profit? After all, trademark applications are ultimately based on “use in commerce.”
My view is that this was an appropriate step to take given all the circumstances. It’s very common for charitable organizations to register trademarks. There’s nothing compelling a trademark owner to use the mark for personal profit. Reuters reports that Ms. Fulton’s attorney said that Ms. Fulton has no plans to profit from the use of the marks.
Unfortunately, it’s not unwise for someone in Ms. Fulton’s position to take affirmative steps to protect her son’s name and make every effort to prevent unscrupulous individuals from using it.
Side note: I would advise Reuters to be a bit more diligent in its research into trademark matters. The article claims that “…if her trademark applications are approved, she could try to force unauthorized clothing designers to stop using her trademarks, or take them to federal court.” However, Ms. Fulton’s applications were for digital materials and media, not for clothing. While Trayvon’s family may be able to prevent others from using his name for profit on clothing, these applications would not be the best tool for them to use.
What About Mr. Singletary’s Application?
As for Mr. Singletary, assuming he has no connection with the family, will he be able to register his mark, or will the family be able to block his application? I discussed individual names as trademarks in a blog post about an attempt by a cosmetics and jewelry company to register the name LADY GAGA as a trademark. Click here for my post on the LADY GAGA trademark.
To recap that post, the USPTO has four bars to trademark registration that might apply to personal names. The primary register of trademarks is barred to a potential trademark when:
- A mark is “primarily merely a surname.”
- An applied-for mark is the name of a living individual.
- A mark falsely suggests a connection with “persons, living or dead.”
- A mark criticizes “persons, living or dead” or brings them into contempt or disrepute.
Here, “Trayvon” is not primarily merely a surname, and sadly the mark does not concern the name of a living individual (leaving aside others who may share his name – clearly the intent of these applications was in relation to the famous Trayvon Martin case). Mr. Singletary’s application does not seem to criticize Trayvon or bring him into contempt or disrepute. So we’re left with the third possibility – does the mark falsely suggest a connection with Trayvon or his family? There is some ambiguity here, but I would lean toward “yes.” It’s reasonable to assume that purchasers of “Justice for Trayvon” merchandise may believe that the source of the goods is related to Trayvon or his family, especially given that they have signaled an intent to produce authorized merchandise. For reasons of respect and decency, I doubt the USPTO or the courts would look favorably upon a third party attempting to profit off of Trayvon’s legacy. I don’t know Mr. Singletary’s intent, and there may be unknown factors weighing in his favor, but as a rule, I would counsel against attempting to register a trademark featuring the name of a famous deceased teenager.
