A trademark, according to the United States Patent and Trademark Office (“USPTO”), can be “any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.” Can a body movement be protected as a trademark? The answer is less than clear.
Usain Bolt Attempts to Protect Victory Pose
Last month, 8-time Olympic gold medalist sprinter Usain Bolt filed a trademark application to protect his signature “victory pose,” in which Bolt bends one knee, leans to the side, and points to the sky. Bolt has titled his move, the “To Di World” pose. Bolt now seeks to use the pose as a logo on a clothing and accessories line, which, according to the August 17th application, would be used in connection with sunglasses, jewelry, bags, clothing, sporting goods, and restaurants and sports bars.
So far, Bolt has not sought protection for the pose itself, instead, applying for a much more common form of design mark as applied to goods. The mark’s description reads: “the silhouette of a man in a distinctive pose, with one arm bent and pointing to the head, and the other arm raised and pointing upward.”
Trademarks May Not be Descriptive
The use of the word “distinctive” in the very description of the mark is a conclusory statement that will have to play out in future disputes. A trademark may not be “descriptive,” meaning that it may not merely describe a quality of the goods or services it is meant to represent. Instead, the strongest marks are “arbitrary” meaning there is no inherent meaning to the marks outside of the meaning imbued by the brand itself.
While Bolt’s mark is to be used in connection with products, a question remains as to whether poses may implicate trademark “use” in various media outlets displaying the poses, even where the mark itself may not be used. Disputes may further define the bounds of protection to be afforded to the trademark, answering questions such as: what constitutes infringement of a mark consisting of a pose; and can a pose be distinctive enough to afford robust trademark protection? Trademarks are unfortunately of uncertain value until they are enforced, meaning these questions are more likely to be answered in future litigation.
Previous Attempts to Trademark Signature Moves
Bolt’s mark is not the first attempt at protecting a mark consisting of an athlete’s signature move. Michael Jordan’s famed “Jumpman” mark, owned by Nike, consists of a silhouette of Jordan jumping in the air with an outstretched hand gripping a basketball.
Nike has sued over the logo in the past, with Chinese company “Qiaodan,” meaning “Jordan” in Mandarin, seeking to profit off of the mark due to China’s first-to-file policy with regard to international trademarks. Jordan finally achieved a favorable ruling in China’s highest court following an 8-year legal battle, resulting in the revocation of the “Qiaodan” mark, noting the similarities in the “Jumpman” logo and “Qiaodan” logos and concluding that the company had wrongfully attempted to capitalize on Jordan’s goodwill and image.
In another example of an attempt to trademark a body movement, Gene Simmons, member of the iconic band “KISS” attempted in 2017 to trademark the iconic “devil horns” symbol now ubiquitous at rock and metal concerts. Simmons claimed to have first used the symbol in 1974 during Kiss’s Hotter than Hell tour.
Simmons faced harsh criticism for the attempt at trademarking the symbol, notably by Wendy Dio, widow of Ronnie James Dio, who was also credited with popularizing the gesture. Simmons abandoned the application in 2017.
Even if Simmons were to have been successful in registering a trademark for his gesture, the ubiquity of the gesture, and thus the uncertainty surrounding what “goods or services” are implicated in the use of the gesture, would surely cause any purported trademark protection to be minimal in practice. Bolt’s registration is distinguishable in its uniqueness, creating an interesting test case for future litigation.
