Where Fan Fiction Stands On Copyright: A Legal Primer

US Women's Gymnastics Team Decides Self-Chosen Nickname 'Fierce Five' Needs Trademark Protection

from the because,-these-days,-NOT-filing-is-never-an-option dept

Wed, Aug 15th 2012 8:04pm — Tim Cushing

Is anyone else out there excited to hear about athletes trademarking nicknames? Anyone? Or is it just another one of those things that seems to go hand-in-hand with buying defensive patents by the bucket-load and fending off onerous members of artists' estates? These IP land grabs seem to be a sign of the times, a brave new world of preemptive protectionism that leads people to believe that they have to quickly lock down everything pertaining to them, even if it's a spur of the moment nickname handed out by an enthusiastic sportscaster.

From the (L)insanity of last year to the trademarked unibrow of a few months ago, athletes are seemingly becoming their own marketing force, rushing off to the trademark office in order to nail down rights to anything remotely catchy/marketable. The latest trademark grab comes on the heels of the Greatest Trademark Show on Earth, the 2012 Olympics.

USA Gymnastics is preparing a trademark filing for the term “Fierce Five,” which was attached to the gold medal-winning women’s gymnastics team at the London Olympics, spokeswoman Luan Peszek said in an e-mail.

Peszek has said the team, including Gabby Douglas, the first black gymnast to win the all-around, preferred Fierce Five to Fab Five.

Good thing, too. The article points out that, preference or no, Fab Five is already taken, secured by Jalen Rose a mere 19 years after University of Michigan's 1991 draft class was given that nickname. I'm not sure what the opportunities are to capitalize on a catch phrase two decades down the road, but if any exist, it's probably in the "undergarments" and "pajamas" field.

The road to "Fierce Five" isn't entirely bump-free, however. Someone has beaten the Olympic medalists to the Trademark Office:

A California man, Paolo Mazza, filed for a “Fierce Five” trademark on Aug. 8, according to the U.S. Patent and Trademark Office website. No attorney was listed on the filing, which provided only a post-office box in Millbrae, California, as an address. There is no telephone listing available.*

*(There is. You just have to dig a little deeper.)

Mazza is no stranger to the trademark field, having filed one for the phrase "Lin-sational" back in February. Wisely deciding to avoid the rush on the more popular phrase "Lin-sanity," Mazza instead attempted to nail down his uncontested phrase only to find it very much contested by the USPTO, which has asked him to provide proof that Jeremy Lin is totally cool with this (orig. wording slightly paraphrased). No doubt Mazza will find himself 0-for-2 in the near future, ~~as no one is allowed to fuck with any Olympics-related IP~~ as it's likely the USPTO will view this new attempt as just another trademark squat, something that is becoming somewhat of a "trademark" for Paola Mazza.

So, it's a little bit of everything that's ridiculous about IP "ownership." Sportscasters use the term "Fab Five" to refer to a gymnastics team, which it can freely do as long as it doesn't slap the phrase on some pajamas, thus violating Jalen Rose's 20-years-from-the-point-of-impact trademark, which has recently been extended. The gymnastics team grants itself its own nickname, the "Fierce Five," and rushes to the USPTO to find itself second in line behind another person who thought he might capitalize on something somehow by swiftly locking the phrase down. (The whole "choose your own nickname" part of this seems a bit disingenuous. I mean, I'd like to be known as "The Impossibly Photogenic Writer" but it's more likely I'll be known as "Pirate Mike's B-Lister," among other things. Just like you don't get to choose your family members or parole officers, you just don't get to choose your own nickname.)

If the granting of trademark protection is supposed to protect consumers from bad actors and allow enforcement by the rights holders to prevent dilution, how does jumping all over a catch-phrase do any of the above? Are consumers really going to be "damaged" if they purchase a counterfeit "Furious Five" unitard? Are we really in need of a bunch of catch-phrases with a (TM) attached in order to dispel the confused haze that surely must surround us at all times? Would it be a lost opportunity if a mildly viral quote went unregistered?

I would think that a key move towards cutting down abuse of this system (trademark trolling/trademark bullying) would be to trim down on the number of, for lack of a better term, "frivolous" filings. I realize the USPTO isn't in any position to try to gauge the level of post-championship, post-interview, post-viral quote atmosphere in which the application was filed (especially months down the road when it gets reviewed), but as it stands now, the system does absolutely nothing to discourage these sorts of actions -- either the quick-fire trademark squatting or the equally-fast attempts to monetize fleeting moments.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fab five, fierce five, gymnastics, olympics, sports, trademark

35 Comments

If you liked this post, you may also be interested in...

Reader Comments

The First Word

“

Those athletes are just following the example set by the Olympic Committee. What did you expect?

—BentFranklin

”

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 15 Aug 2012 @ 8:28pm

Let them have "fierce Five". After the olympics they will be nobodies. No one cares about the Oldlimpdicks after the games are over.:)
[ link to this | view in thread ]
ChurchHatesTucker (profile), 15 Aug 2012 @ 9:09pm

Don't trademarks have to yield to prior art?
[ link to this | view in thread ]
gab4moi (profile), 15 Aug 2012 @ 9:42pm

I am rushing to lodge a claim on 'Gabby Dabby Doo', I am sure Ms Douglas' soon to be revealed new hairstyle will require a name and I have the one for her! Now, where to retire to...
[ link to this | view in thread ]
BentFranklin (profile), 15 Aug 2012 @ 9:53pm

I totally agree with the "land grab" description. It's like Oklahoma all over again, soon to be followed by the barbed wire fences.
[ link to this | view in thread ]
BentFranklin (profile), 15 Aug 2012 @ 10:04pm

Those athletes are just following the example set by the Olympic Committee. What did you expect?
[ link to this | view in thread ]
Jeffrey Nonken (profile), 15 Aug 2012 @ 10:05pm

http://www.youtube.com/watch?v=PdID_lAV2aE
[ link to this | view in thread ]
Anonymous Coward, 15 Aug 2012 @ 11:27pm

Maybe it is time to start asking people to show proof that they are using a trademark before granting any to anyone.

I mean why would you grant such things for "potential use" and not "actual use"?
[ link to this | view in thread ]
John, 16 Aug 2012 @ 12:23am

Fierce...
Curb your enthusiasm, season 4, episode 5
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 12:28am

Fierce
Are you kidding me ? Are they forming a girl band or something ?
[ link to this | view in thread ]
The eejit (profile), 16 Aug 2012 @ 12:32am

Re: Fierce...
Fantastic Four surely causes confusion here! TRADEMARKSSSSS!!!!
[ link to this | view in thread ]
G Thompson (profile), 16 Aug 2012 @ 12:54am

So to trademark this 'nickname' and keep the trademark from lapsing the mark needs to be used in commerce at all times.

Would this then make the 'five' be professional players and not amateurs, under Olympic rules, since they are receiving commercial gain (not sponsorships which is ok since it is more a gift and not 'commercial') therefore removing ad making moot any future Olympic or other amateur sporting meets?

Not sure someone has thought this all the way through
[ link to this | view in thread ]
Mike Masnick (profile), 16 Aug 2012 @ 1:21am

Re:
Anyone who links to Sports Night clips is an automatic winner in my book. Cut man!
[ link to this | view in thread ]
peter, 16 Aug 2012 @ 2:08am

Misunderstanding
"trademark protection is supposed to protect consumers from bad actors and allow enforcement by the rights holders to prevent dilution"

There is where the misunderstanding starts and finishes. You see a Trademark is there is order for me to MAKE MONEY and to stop others from stealing MY MONEY. It therefore follows that anything that could possibly be used by me, be snapped up and so I can prevent anyone else jumping in first, or at all.

'protect customers'.....Pah Who cares about them
[ link to this | view in thread ]
Barbara S., 16 Aug 2012 @ 2:22am

Infamy FTW.
I'm off to trademark "Mazza-mark / Mazza-marking" . It is a name given to or the act of a squatted trademark.
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 16 Aug 2012 @ 3:31am

Re: Infamy FTW.
That would be the MM mark. Not to be confused with Mickey Mouse, who trademark proceeds this, as evidenced by handwritten notes on Mazza's various filings: "This is a mickey mouse filing."
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 16 Aug 2012 @ 3:42am

Re:
Agreed. The only thing saving me from spending the next several hours at Youtube and Netflix is the fact that I have to go work.

Sports Night is my personal TV Tropes. (And The Thick Of It is my TV Tropes, British edition.)
[ link to this | view in thread ]
Ninja (profile), 16 Aug 2012 @ 3:47am

It is going to be a Fierce battle for trademark!
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 16 Aug 2012 @ 3:49am

Re:
Sort of. Someone can get a competing application tossed out if they can show they've used the mark in commerce previously, even if the competing app was filed before their own.
[ link to this | view in thread ]
The MaskedAvenger, 16 Aug 2012 @ 4:26am

I wonder...
Does anyone know if the "Fab Four" is avaliable to trademark, ya see I have this idea for a band...
[ link to this | view in thread ]
DUMBASS POLITICIANS, 16 Aug 2012 @ 4:57am

USA retards rejoice
im patenting this....as well as DUMBASS POLITICIANS.....imma be rich
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 5:06am

(The whole "choose your own nickname" part of this seems a bit disingenuous. I mean, I'd like to be known as "The Impossibly Photogenic Writer" but it's more likely I'll be known as "Pirate Mike's B-Lister," among other things.

You should check and see if Charlie McCarthy is taken.
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 5:26am

Uh Mike...
Wouldn't that be "with a (R) attached to them instead of a "(TM)"?
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 5:26am

Uh Mike...
Wouldn't that be "with a (R) attached to them instead of a "(TM)"?
[ link to this | view in thread ]
RobM (profile), 16 Aug 2012 @ 5:33am

You cannot trademark Squat� these days.
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 5:42am

Re:
Sure you can. You in effect just did. The TM mark is simply a claim made for an unregistered trademark. Official one's that have been registered get the R symbol.
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 5:42am

Re:
Sure you can. You in effect just did. The TM mark is simply a claim made for an unregistered trademark. Official one's that have been registered get the R symbol.
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 6:01am

Re:
Interesting point but it is likely to be argued that the trademark allows amateurs to protect their future professional use of the trademark even if they are not currently using it in commerce. The argument as I see it would be that it would protect from confusion that the product being offered by a third party has been authorized by the amateur when it has not been. As for the aspect of them being professionals, unless we are talking about them being able to continue to compete in collegiate competitions and other amateur only events, that went away in the early 90's.
[ link to this | view in thread ]
Pixelation, 16 Aug 2012 @ 7:49am

Looks like someone owns the Domain fiercefive.com. Wonder if he'll get sued after they get a trademark.
[ link to this | view in thread ]
Yakko Warner (profile), 16 Aug 2012 @ 8:24am

Skadoosh
Are consumers really going to be "damaged" if they purchase a counterfeit "Furious Five" unitard?

Perhaps not, but Dreamworks might have a few words.
[ link to this | view in thread ]
Jeffrey Nonken (profile), 16 Aug 2012 @ 9:09am

Re: Re:
Heh, thanks. It was the first thing I thought of when Tim talked about picking your own nickname.
[ link to this | view in thread ]
Anonymous Coward, 16 Aug 2012 @ 11:20am

Arrrr, mateys!
Shiver me timbers, 'tis Pirate Mike of the goode ship Techdirt!
[ link to this | view in thread ]
art guerrilla (profile), 16 Aug 2012 @ 12:41pm

Re: Re:
a-ma-teurs ? ? ?
what is that ? is that an archaic term or sumpin'?
here's a factoid that i bet bob costas didn't throw out in his interminable, boring, olympic-sized trivia fest:
did you know that the USOC pays US olympic medal winners ? ? ? (some other countries do too...)
i didn't, until i just ran across an article talking about it a month or so ago...
since 1984 they have paid out for medals, these days the rate is:
25 000 for a gold
15 000 for a silver
10 000 for a bronze...
funny, NO ONE i talked to who follows the oilympics knew of that minor factoid...
huh, wonder why...
you'd think in cha-ching-obsessed 'murika that would be a little more publicized...
art guerrilla
aka ann archy
eof
[ link to this | view in thread ]
temoi, 16 Aug 2012 @ 3:23pm

whatever, just put down that tranny jordan wieber.
[ link to this | view in thread ]
Anonymous Coward, 17 Aug 2012 @ 4:45am

Not in the US - but in Australia in the early 2000s an NRL forward pack (minus the hooker) was given the nickname the Fierce Five.
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 17 Aug 2012 @ 8:41pm

Re:
Alright. For a cheap driveby swing at me and TD at large, that's actually pretty good. Have some imaginary points.
[ link to this | view in thread ]