Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 24, Issue 1
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Tom Brady: Michigan’s Greatest QB Backup?
Twenty-six years ago, the Michigan Wolverines won a national championship in football. The greatest quarterback in NFL history, Tom Brady, was on that roster but didn’t start a single game, sitting behind starter Brian Griese. You could say he had a supporting role in that national title.
If the Maize and Blue win Monday’s national title game against the Washington Huskies, Brady would have a supporting role in another Michigan title. But how?
NIL.
NIL, which stands for “Name Image Likeness,” is a term for the rights each person can sell or license others to use for a variety of purposes. NIL falls under the right of publicity, a form of intellectual property right that is governed by state laws (no federal right exists), and generally vests in each person, including yours truly, the right to control commercial depictions of their identity.
In June 2021, college athletes were no longer prohibited by NCAA rules from commercializing their NIL. Since then, NIL rights have rapidly morphed into a boom economy for college athletes as exemplified by Iowa Hawkeye basketball superstar Caitlin Clark (proud two-time Iowa alum here), famous for her game-winning “logo” three-pointers.
NIL deals often take the form of appearing in advertising campaigns, such as Powerade’s deal with five college football athletes for the 2023 season. NIL rights can also be used to create brands that capture an aspect of an athlete’s identity and popularity—these brands are protected by trademarks. Trademarks are, simply, marks of trade—symbols, names, designs, or any designation that is used to identify a source of goods or services.
University of Florida quarterback, Graham Mertz, registered a trademark for a “GM” logo design shown below for use on various clothing items. He filed the application when he was quarterback for the University of Wisconsin in 2021.
On the year, McCarthy has accounted for 25 total touchdowns, and based on On3’s NIL value estimates, McCarthy has earned about $56,000 per touchdown, or $1.4 million total (as of January 4th), tops on the team. For comparison, McCarthy’s estimated NIL value is $530,000 more than the 2023 salary for Brock Purdy, the top candidate for MVP in the National Football League.
Among McCarthy’s NIL deals? Tom Brady’s apparel brand, BRADY BRAND.
If Michigan wins on January 8th, Brady would be playing a supporting role to another title-winning Michigan quarterback—Griese’s backup in 1997-98, and McCarthy’s NIL support this season.
Thanks to leveraging intellectual property rights—Brady’s trademark and McCarthy’s NIL rights—Tom Brady has a strong chance to earn a very unexpected honor to his long list of accomplishments (including seven Super Bowl wins): “best backup quarterback in Michigan history.”
Alexander JSW Johnson is an attorney at Fishman Stewart with more than 10 years of extensive experience in trademark and intellectual property matters. He works in the firm’s Trademark Practice Group. He holds a B.A. in Art (studio emphasis) and Journalism.
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Momofuku, founded by celebrity chef David Chang, is well known for its crunchy, peppery, and umami-flavored condiment, CHILI CRUNCH. Momofuku acquired rights in the trademark after a dispute with Chile Colonial over the name and subsequently sought to enforce its rights in CHILI CRUNCH against purported infringers using the same term for competing products.
First, a big “thank you” to all our readers who have given feedback on our newsletter. We appreciate your interest and insights. It is always a treat to hear from you! Second, we wanted to provide you with updates on some of our most popular articles
How will you be celebrating World IP Day on April 26th? Finny will be swimming around the world testing the cleanliness of our waters and visiting his friends under the sea because this year’s topic is “Sustainable Development Goals” (or “SDGs” for short).
Climate change has increasingly dominated daily news cycles, signaling a growing urgency for action. The escalation of temperatures during the hottest months serves as a stark reminder of the immediate need for solutions.
President Donald Trump recently began promoting a brand-new pair of limited edition sneakers for sale bearing a T logo, American flag design, gold upper, and red sole bottom. Surprisingly, the Never Surrender High-Tops bear a striking resemblance to these high-end fashion sneakers manufactured and sold by famous footwear designer Christian Louboutin.
The issue of deepfakes has been making headlines as the US enters another presidential election cycle, due largely to concerns over the potentially deleterious effects of misinformation on voters.
“Palworld”— a computer game created and published by Japanese developer Pocket Pair. Released as an early access game in January 2024, it sold over seven million copies on the computer platform Steam in the first five days and had nearly 20 million players in the first two weeks.
This year’s Super Bowl featured a thrilling overtime victory for the Kansas City Chiefs over the San Francisco 49ers. With estimates as high as 123 million viewers, America's premier sporting event also serves as a grand stage for creativity and intellectual property protections that enhance the game’s success.
Valentine’s Day is just around the corner and jewelry sales are usually around $6 billion USD in the United States alone. In 2021, the US Customs and Border Protection agency seized over $1 billion USD worth of counterfeit pieces of jewelry.
Detroit Lions In Copyright Dispute Over Barry Sanders Statue
Fish Tank: Newsletter Volume 24, Issue 3
This season marked many ‘firsts’ for the Lions including unveiling the first statue at Ford Field immortalizing a former Lion: Barry Sanders. However, some may not consider the Sanders statue a clear ‘win’ for the Detroit Lions franchise.
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