A brand, according to United States Patent and Trademark Office (“USPTO”), can be “any word, phrase, symbol, design or combination thereof that identifies your goods or services”. Can a bodily movement be protected as a trademark? The answer is far from clear.
Usain Bolt tries to protect victory pose
Last month, eight-time Olympic gold medalist sprinter Usain Bolt filed for trademark registration to protect his “victory pose” in which Bolt bends one knee, leans to the side and points skyward. Bolt titled his move, the “To Di World” pose. Bolt is now seeking to use the pose as a logo on an apparel and accessories line, which according to the August 17 request would be used in connection with sunglasses, jewelry, bags, clothing, sports, restaurants and sports bars.
So far, Bolt has not sought protection for the pose itself, but has instead sought a much more common form of design mark applied to wares. The description of the mark reads: “the silhouette of a man in a distinctive pose, with one arm bent and pointing towards the head, and the other arm raised and pointing upwards”.
Trademarks may not be descriptive
The use of the word “distinctive” in the actual description of the mark is a conclusive statement which will have to play in future litigation. A mark may not be “descriptive”, which means that it cannot simply describe a quality of the goods or services that it purports to represent. Instead, the strongest marks are “arbitrary”, which means that there is no inherent meaning in the marks apart from the meaning imbued by the mark itself.
While Bolt’s mark must be used in connection with goods, a question remains as to whether the poses may involve the “use” of the mark in various media displaying the poses, even where the mark itself cannot not be used. Disputes can define more precisely the limits of the protection to be granted to the mark, answering questions such as: what constitutes an infringement of a mark consisting of a pose; and can a pose be distinctive enough to offer strong brand protection? Trademarks unfortunately have uncertain value until they are enforced, meaning these issues are more likely to be resolved in future litigation.
Previous brand signature move attempts
Bolt’s mark is not the first attempt to protect a mark consisting of the characteristic movement of an athlete. The famous “jumper,” owned by Nike, consists of a silhouette of Jordan leaping through the air with an outstretched hand gripping a basketball.
Nike has pursued the logo in the past, with the Chinese company “Qiaodan”, which means “Jordan” in Mandarin, seeking to cash in on the brand due to China’s first-to-file policy with regard to international brands. Jordan finally won a favorable ruling from China’s highest court following a 8-year legal battleresulting in the revocation of the “Qiaodan” trademark, noting the similarities between the “Jumpman” logo and the “Qiaodan” logos, and concluding that the company had wrongly attempted to capitalize on Jordan’s notoriety and image.
In another example of an attempted trademark of a body movement, Gene Simmons, member of the iconic group “KISS” attempted in 2017 to trademark the iconic “devil hornssymbol now ubiquitous in rock and metal concerts. Simmons claimed to have used the symbol for the first time in 1974 during Kiss’s Hotter than Hell tour.
Simmons faced heavy criticism for the attempt to trademark the symbol, including by Wendy Dio, widow of Ronnie James Dio, who was also credited with popularizing the gesture. Simmons dropped the app in 2017.
Even if Simmons were successful in registering a trademark for his gesture, the ubiquity of the gesture, and thus the uncertainty surrounding the “goods or services” involved in the use of the gesture, would surely cause any purported trademark protection to be minimal in practice. . Bolt’s recording stands out for its uniqueness, creating an interesting test case for future litigation.