By Leticia Halas & Cari Cohorn
On December 27, 2013, during a postgame interview at Oracle Arena, home of the Golden State Warriors, David Lee coined a hashtag that took social media by storm. When asked about the Warriors’ improved defense, Lee responded:
“Our defense has been pretty good overall lately. I was looking when we have our full squad. WarriorsWorld dude, you have to tell me. What’s our record, Jordan, with our full squad? What’s our record? Fullsquad. When we have everybody? Does anybody know what our record is? When we’ve got Andre and Steph and everybody in the lineup? We’re pretty darn good”
The catchphrase #FullSquad sparked an overnight media frenzy and flooded Twitter, Facebook and Instagram feeds. In under a week, it was used more than 15,000 times on Twitter alone. Then came the inevitable race to the United States Patent and Trademark Office.
On January 8, 2014, Slake Agency LLC of Burlingame, California, filed an application to register the mark “Full Squad”. The very next day, David Lee and Rasheen Smith, President and Co-founder of FlexPower Pain Relief & Performance, filed an application for the same mark. Their pending application was suspended on February 22, 2014 due to the previous application filed by Slake Agency. Slake Agency later abandoned its application on April 10, 2014. However, #FullSquad t-shirts are being sold on WarriorsWorld.net, the website associated with one of the reporters at the December 27 post-game interview, Jordan Ramirez. The sale of these shirts could potentially conflict with Lee’s application if it is registered. (It is well settled that a trademark is owned, whether registered or not, by the first person/entity to use it in commerce — and not necessarily by the person who came up with the idea. Since Lee’s registration application is only an “intent to use” application, and Lee apparently has not yet used the mark in commerce, WarriorsWorld.net could argue it has superior rights in the mark.)
WarriorsWorld.net and the trademark applicants were not alone in recognizing the opportunities that could blossom from the catchphrase. David Kelly, Vice President and General Counsel of the Warriors mentioned that the Team also had an interest in #FullSquad. They considered working with Lee in exploiting #FullSquad commercially, but the Collective Bargaining Agreement (CBA) between the National Basketball Association (NBA) and National Basketball Player’s Association (NBPA) prohibits such agreements. In relevant part, the CBA provides:
At no time shall there be any agreements or transactions of any kind (whether disclosed or undisclosed to the NBA), express or implied, oral or written, or promises, undertakings, representations, commitments, inducements, assurances of intent, or understandings of any kind (whether disclosed or undisclosed to the NBA), between a player (or any person or entity controlled by, related to, or acting with authority on behalf of, such player) and any Team (or Team Affiliate): involving an investment or business opportunity to be furnished or made available to the player, or any person or entity controlled by, related to, or acting with authority on behalf of the player.
Teams’ ability to trade players further complicates any potential collaboration between a player and a Team. For example, if the Warriors and Lee came to some sort of agreement and Lee was subsequently traded, the Warriors would be in effect, contractually bound to a player of another team. In sum, prospective deals between Lee and the Warriors were quickly discarded.
In this specific instance, #FullSquad appears to promote the Team more than it promotes David Lee. In contrast with nicknames associated with particular athletes, such as Kobe Bryant’s “Black Mamba” (Floyd Mayweather’s uncle recently filed a trademark application for the mark ‘Roger “Black Mamba” Mayweather) or Pablo Sandoval’s “Kung-Fu Panda”, #FullSquad denotes the Warriors as a whole team. Therefore, the Warriors have a right to fully protect its brand. On the other hand, David Lee also has a right to protect his own brand as a professional athlete, regardless of which team he plays for.
Balancing a professional athlete’s interest in brand-building to enhance potential future earnings against the Team’s right to protect its brand and image in the community is a perpetual challenge. Both the Teams and the players have an interest in their on-the-court brands, but whether a particular mark is more closely associated with a player or a Team varies. To illustrate, Kent Bazemore, former shooting guard for the Warriors was recently traded to the Los Angeles Lakers. During his time with the Warriors, Bazemore became well known for “Bazemoring”- his vibrant and over-the-top celebrations from the bench. This term can live on with Bazemore and can be used to expand his marketability. The phrase “Splash Brothers” however, (associated with Stephen Curry and Klay Thompson) is connected with the Team and would be meaningless from a marketing perspective if either player were traded.
The CBA places many limits on a player’s earning potential, especially with respect to the use of NBA or Team marks. Here however, if Lee’s trademark registers and if WarriorsWorld.net’s foreseeable defense fails, he will benefit as the co-owner of #FullSquad.
Leticia Halas, former college athlete and third-year law student, is currently interning with Phillips, Erlewine & Given LLP in San Francisco, California. Cari A. Cohorn is a partner with the firm. Her practice focuses on employment law, as well as sports and entertainment law.
