If you haven’t heard of Johnny Manziel yet, you will. On December 8th, the 20 year-old from Texas A&M became the first freshman in college football history to win the Heisman Trophy. In a country where football is a religion, the kid with an arm of steel and a heart of gold represents a salvation for a sport still reeling from the aftermath of the Penn State tragedy, and the public controversies surrounding on-field concussions. Manziel represents a return to a squeaky clean Friday Night Lights brand of ball. His Aggie fans have even nicknamed him Johnny Football for goodness sake! It doesn’t get any more squeaky clean than that. And everyone wants a piece of the Johnny Football brand— from the NCAA to the university to the sport’s marketing machine at large. But who will win?
In November of 2011 the Johnny Football name was registered for trademark with the USPTO office for a variety of goods and services. Was it registered to Johnny himself? Nope. It was registered to Kenneth R. Reynolds Family Investments, an entity that appears to be attempting to pirate the trademark by taking advantage of an opportunity NCAA bylaws provide. The NCAA strictly forbids student-athletes from receiving compensation (beyond their athletic scholarships) for the duration of their collegiate careers. Furthermore, their athletic scholarships can’t exceed the cost of tuition and fees, room and board, and books. Ironically, the cost of a thirty-second spot during the NCAA Men’s Final Four comes in at around $1.2 million, according to Bloomberg.com. Unfair to the players? Maybe. Okay, probably.
But here’s where things get murky. Can we really consider a trademark a profit? Like any brand name, the Johnny Football trademark is an asset that you build value in over time. Sure, it can help your brand build loyalty and command premium pricing in the future, but it’s not as simple as a paycheck. Moreover, by holding the Johnny Football trademark hostage in the short-term, the NCAA is hurting Manziel’s ability to profit from his own brand in the future, long after his college career is over. Instead of higher education increasing one’s earning potential, it’s actually diminishing it in the case of NCAA players like Johnny Manziel. It’s like the NCAA doesn’t want players to stick around after their freshman year anymore.
Let’s take for example Anthony Davis, a one-and-doner from the University of Kentucky and this year’s No. 1 pick in the NBA Draft. You may remember Davis from his signature eyebrows, or should I say, eyebrow (singular). Davis trademarked his distinctive unibrow by registering the phrase “fear the brow” with the USPTO in June 2012. But if you look closely, you’ll see the same phrase was also registered to a company called Blue Zone, a sports outlet in Lexington, Kentucky back in 2011. So who would the Trademark and Patent Office support? The answer is actually a little surprising. In the US and most other countries, the law protects those who are the first to use a trademark, not the first to register. In order to have rights to the trademark, you have to use it publicly in association with a good or service. It’s what prevents companies from gobbling up all the good names and taglines for fictitious products and services that they’ll never launch just to keep their competition from having them. In this case, because Blue Zone was the first to use the “fear the brow” trademark, they actually may have rights to it under the strictest interpretation of the law. So for now, it looks like Davis and his brow are safe. But by preventing other players like Johnny Manziel from using their own nicknames and likenesses in the short-term, the NCAA could prevent them from being able to use them when they go pro.
It’s the complicated reality of collegiate and professional sports today that didn’t used to matter. It’s hard to imagine, but no one wanted to “be like Mike” when he was a North Carolina Tar Heel. Wilt wasn’t “Wilt the Stilt” when he was a Kansas Jayhawk. And Deion didn’t become “Neon Deion” until he left Florida State. But for Johnny Manziel, Anthony Davis and other freshman phenoms, their brands are created the second they start school. Currently the Manziel family is working with Texas A&M to protect the trademark (as well as his eligibility). Only time will tell who will prevail in the battle over Johnny Football.