Johnny Manziel and his rights in the “Johnny Football” nickname continue to provide for interesting discussion. Last week, my sports law class at Quinnipiac Law School discussed Manziel’s lawsuit against an individual selling “Johnny Football” t-shirts. Here are a few of the points that we discussed:
1. Manziel has reportedly brought a number of claims against the t-shirt vendor, including trademark infringement. Although we haven’t had an opportunity to review Manziel’s complaint, it appears that he will have difficulty prevailing on the trademark claim. The U.S. Patent and Trademark Office has yet to approve the Johnny Football trademark. At common-law, trademark protection typically begins once there is use in commerce; if there is no use, there is no protection. Manziel, however, cannot use the Johnny Football mark in commerce because of NCAA rules prohibiting student-athletes from profiting from the use of their likeness.
2. Even if Manziel’s trademark claim fails, his right of publicity claim appears strong.
3. Darren Heitner has a good article on Forbes.com about the potential recovery that Manziel might expect. Although the NCAA’s decision allowing Manziel to keep any proceeds from a lawsuit has raised eyebrows, the case is unlikely to be a rainmaker. Manziel is likely to get an injunction to stop the vendor from producing these t-shirts and possibly a small damages award. Of course it begs the question of whether Manziel’s case would be worth more if he were allowed to market goods under the Johnny Football name.
4. An interesting defense for the vendor might be that Manziel is not damaged because he’s not allowed to profit from the use of his likeness or the Johnny Football name. This defense is unlikely to carry the day but it certainly is interesting.
Stay tuned for more on this case as information becomes available. Also, be sure to check out Rick Karcher’s Open Letter to College Athletes over at the Sports Law Blog.