Can Colin Kaepernick trade mark his face?

Colin Kaepernick, star of Nike’s divisive 30th anniversary ‘JUST DO IT’ campaign (and ex San Francisco 49ers quarterback), has filed a US trade mark application for an image depicting his face.

Some media outlets have suggested that Kaepernick is attempting to trade mark “his own face” and his “face and hair”.  Unsurprisingly, but perhaps disappointingly, this is a slight exaggeration of the rights he will have in practice should the application register.

Kaepernick, through his company Inked Flash Inc., has filed the application for the below image:

The application has been filed for, amongst other things, “shampoo”, “drums”, “electric fans” and even “ornamental novelty buttons”, as well as for the service of “conducting workshops and seminars in self-empowerment and awareness”.

So, how will Kaepernick benefit should the application register?

Well, Kaepernick will not benefit from an absolute monopoly over his face or hair generally, at least from a trade mark perspective.

He will, however, benefit from a monopoly over use of the image as filed meaning that he will be able to prevent others from using marks which consumers are likely to confuse with his mark (on the basis that such marks are identical or similar to his trade mark). No monopoly over the use of Kaepernick’s image in general will be granted.

That said our view is that this is a smart commercial move. Right now, Kaepernick is in the public eye and he is taking this opportunity to create and protect a brand which he can use, exclusively, in connection with the goods and services for which the application has been filed.

As Kaepernick will be able to monopolise use of the image following registration, this will also likely allow him to demand larger fees should he licence use of the image to third parties.

Kaepernick is no stranger to trade mark registration, having previously registered ‘I’M WITH KAP’, ‘COLIN KAEPERNICK’ and even ‘KAEPERNICKING’ for clothing items – each granting him a monopoly over use of those terms (and confusingly similar terms) in connection with such goods.

If you have a trade name or logo that you wish to monopolise, please feel free to contact Tom Broster by email to tom@briffa.com or call us on 020 7096 2779.