Recent news reports have suggested that Tim Tebow (“Tebow”), the backup quarterback of the New York Jets, has “trademarked” his famous pose in which he kneels on one knee, places his hand on his forehead and bows his head in prayer. This pose is referred to in popular parlance as “Tebowing.” Tebow has been “Tebowing” for many years, first as the star quarterback of the University of Florida’s national championship team, and more recently during his tenure with the Denver Broncos and New York Jets of the National Football League.
Certain reports have gone so far as to suggest that “dropping to a knee like Tim Tebow may cost you now,” insinuating that Tebow will be able to recover damages from anyone who strikes the “Tebowing” pose without authorization. After further review, however, we have to throw a flag on these news reports, inasmuch as they are not entirely accurate. What Tebow has sought to do is to secure the exclusive right to use the word “TEBOWING,” by filing several U.S. trademark applications for the term “TEBOWING.” He has not made any attempt to lay claim to the exclusive right to “strike” his famous pose.
It is worth noting that the terms “patent,” “trademark” and “copyright” are used loosely, and often interchangeably and incorrectly, by the media. Generally speaking, a patent protects a unique process or machine, while a copyright protects works of art such as novels and paintings. Trademarks, on the other hand, protect words, symbols, logos, slogans and the like that are used on or in association with goods or services to identify the source of those goods or services. Trademark protection would not be available to protect the actual act of “Tebowing,” just as one would not be able to “trademark” a touchdown dance. One could, however, obtain trademark protection for a design that depicts the act of “Tebowing,” if used on or in connection with goods or services. The attempt to obtain trademark protection for the term “TEBOWING” is part of an effort to control use of the term on merchandise, not to prevent others from striking a similar pose.
Indeed, Tebow, through an associated company, has filed several applications to register the term “TEBOWING” as a trademark for a wide variety of goods and services, including such items as jewelry, watches, clothing of all types, posters, school supplies and sporting goods. The U.S. Patent and Trademark Office recently approved one of these applications for “publication,” which is what generated the news reports on the subject. This does not mean that the applied-for mark has been granted registration, but rather, merely that the mark has been approved by the U.S. Trademark Examiner. The application will now be “published for opposition,” which means that third parties will have the opportunity to oppose the application should they find it objectionable or perceive a conflict. Thereafter, since Tebow’s applications have been filed on an intent to use basis, rather than on the basis of actual use in commerce, Tebow will need to actually use the mark on goods or in connection with services before he will receive a registration. That is, Tebow’s company will actually need to sell goods bearing the mark or render services under the mark before the applications will ultimately mature into registrations.
Despite suggestions to the contrary, we are not aware of any action taken by Tebow to attempt to protect the act of “Tebowing.” Indeed, it would likely prove difficult, if not impossible, for Tebow to obtain any intellectual property protection for the act of striking his pose. It is conceivable, however, that Tebow could attempt to obtain copyright protection for the act of striking his pose, on the grounds that striking the pose qualifies as a “choreographic” work, which is available for certain types of dances.
Regardless, it would appear for the time being that the masses may continue “Tebowing” without fear of reprisal – so long as they do not print the term on a t-shirt.
