What is the difference between kissing your bicep when scoring a touchdown and creating the shape of an 'M' above your head having won a race?
The answer is none in terms of gestures to celebrate success but unfortunately for Mo there are very significant differences if you are looking to protect and manage your personal brand.
In the US where the concept of sport and celebrity branding is commonplace, the San Francisco 49er's quarterback Colin Kaepernick has just filed 7 trade marks for variants of his name. One of these is for the name Kaepernicking which refers to act of kissing his bicep having scored a touchdown. This has been applied for clothing, clearly in order to sell as many t-shirts as possible. Keapernick follows in the wake of other American footballers such as Tim Tebow who has a trade mark of him in his prayer pose.
Why mention the Mobot in relation to this? Well, the fact of the matter is that 'mobot' has now entered the dictionary and as such has become generic and therefore not protectable through a trade mark or any other IP rights. Clearly this is a missed opportunity from a branding perspective and demonstrates the difference between the UK and US and their approach to the commercialisation of athletes and personalities.
In the UK, celebrity linked trade marks suffer from a potential 'badge of origin' test (i.e. there is a belief that the goods or services do not actually come from the celebrity concerned), whilst in both countries trade marks suffer from the weakness of the mere endorsement concept where a name is simply placed on the goods themselves. This is often perceived as a very weak trade mark which will not actually protect the personal - interestingly, the Kaeperninking trade mark is shown as a mere name on a t-shirt.
Where trade marks suffer from these limitations, Guernsey Image Rights can fill the gaps. In the case of Kaepernick, he could register himself and then register all the associated imagery and poses associated with himself. This way he can not only protect his name and the seemingly endless variants, but can also protect the imagery surrounding himself - which undoubtably is the most valuable of all. Which brings us back to the Mobot and the missed chance of protecting and exploiting an instantly recognisable image. If only someone had considered the branding opportunities and advised Mo to formally protect the Mobot. We should all take the US as an example and make forward provision to protect and manage such valuable pieces of IP.
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