Remember my earlier blog about the Florida grandparents who filed applications to register trademarks to “protect” the name of their murdered granddaughter? All of the media attention on the recent killing of Trayvon Martin in Florida made me think. I wonder…
Sure enough, the mother of Trayvon Martin has filed applications to register I AM TRAYVON and JUSTICE FOR TRAYVON. A separate application to register JUSTICE FOR TRAYVON MARTIN FOUNDATION was filed by the Justice for Trayvon Martin Foundation, Inc., which is a foundation established by the family of the deceased boy.
Unlike the “Caylee Anthony” marks (which were filed for use in connection with t-shirts, stickers, underwear, and buttons), the applications filed by Trayvon’s mother are for digital materials, and the Foundation’s application is for use in connection with charitable fundraising services and educational and entertainment services. From purely a trademark standpoint, these are much more appropriate uses, and the owners of these applications could actually achieve trademark “protection” for these uses of Trayvon Martin’s name and image. In addition, use of these marks on t-shirts, stickers, buttons, and other items is good trademark practice if such items advertise or promote the underlying trademarked services.
Confused? Don’t be. Just remember that words or designs used strictly for decorative purposes do not meet the “branding” requirement for trademark protection.
So what happened with the Caylee Martin marks? Both applications filed by the grandparents—actually, in the name of a law firm representing the grandparents—have been abandoned. The applications were reviewed and Office Actions were issued asking if the name in the marks represented a living or deceased individual, and requesting the consent of the named individual, if living. The grandparents/lawyers failed to respond, and so the applications were abandoned without ever getting to the really meaty issues—whether the law firm could actually prosecute the applications without being the owner of the marks, or whether the grandparents could ever establish appropriate use of the marks as trademarks.
While it is possible that the grandparents could have worked out the technicalities and ultimately obtained registrations of the marks, I suspect that timing affected their ultimate decision not to proceed. While the applications were pending, the mother of the child, Casey Anthony, was acquitted of the murder charge. Caylee Anthony became yesterday’s news. There was no longer as much commercial value in the use of her name, and thus less concern for protection.
It may also have dawned on the grandparents that their acquitted daughter could actually challenge them for any trademark rights that they claimed—or at least prevent them from exercising any such rights. Under Florida’ s Commercial Discrimination laws (Chapter 540), no one is allowed to publish, print, display, or otherwise publicly use the name, portrait, photograph, or other likeness of any person for commercial or advertising purposes without that person’s express consent. For a deceased person, a license to use the name can only be given by a surviving spouse or surviving children. (Yes. That is what it says.) Elsewhere in the statute a parent or guardian is authorized to give consent for a minor, but that language is not expressly stated in the section applicable to deceased persons.
Under the current circumstances, I suspect that this technicality will not become a factor in the Trayvon Martin case, unless raised by his father or someone else interested in commercial opportunities or trying to make mischief. About the same time that the Martin family applied for registration of its marks, an individual in California applied to register JUSTICE FOR TRAYVON for use on hooded sweatshirts, and an individual in Kansas applied to register IF I HAD A SON, HE’D LOOK LIKE TRAYVON for “licensing of advertising slogans and cartoon characters.” And while neither George Zimmerman—the man who shot Trayvon Martin—nor his family appear to have taken any similar actions to protect his name and story, an individual in San Francisco has applied to register I BELIEVE YOU ZIMMERMAN for use on all sorts of clothing, glasses/cups/mugs, and stickers.