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Colin Kaepernick defends move to protect personal brand

8:51 AM, Feb 1, 2013   |    comments
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(USA TODAY) -- Colin Kaepernick says he isn't being greedy.

At first glance, the decision by the San Francisco 49ers quarterback to apply to register "Kaepernicking" and five other terms with the U.S. Patent and Trademark Office might appear to be a play for cash.

He insists his motives are pure.

"Camp Taylor is a foundation that I'm connected with right now, and anything I can do to help them and help those kids is something I want to do," Kaepernick said Thursday.

That's not uncommon, says Vanessa Backman, the intellectual property counsel at The Consul Group, a Portland, Ore.-based law firm.

"A lot of players have foundations under their name or affiliated with their name," she says. "And a lot aren't taking money for themselves, but to prevent misuse of their name."

More and more athletes are applying for trademarks to protect their image or, to be more precise, their brand. Washington Redskins quarterback Robert Griffin III has applied for "unbelievably believable," the turn of phrase he uttered during his Heisman Trophy acceptance speech.

That's undeniably unique to Griffin, but that's also the point of the trademark.

"Sometimes, there is some money to be made from capitalizing on a hot theme," said Mark McKenna, a professor at Notre Dame School of Law specializing in intellectual property, via e-mail. "That moment is, for most of your examples, pretty fleeting - think 'Linsanity.' But it's possible it is enough to justify some interest.

"But in the cases in which the phrases refer to a particular individual, sometimes they're less concerned with using the term themselves to make money than they are in controlling that term and preventing others from using it - especially if they are concerned about it being used in some unsavory way."

Jaia Thomas, a New York-based attorney whose forte is intellectual property rights, advises her athlete and entertainer clients to act quickly.

"It's important because if they don't get around to trademarking it, someone else will," Thomas says.

The fee ranges between $275 and $325 for online, and $375 for submitting a paper application.

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Generally speaking, there are two categories in which to file an application: in use, or intent to use. In 2011, there were 301,786 new applications to register trademarks. By the end of 2011, the number of active registrations was 1,755,578.

While his intentions might be different, Kaepernick certainly has a lot of company.

"Athletes aren't just out there playing football - they're out there doing reality shows, clothing lines, coming up with record labels," Thomas said.

"If Kaepernick doesn't file for it, that gives me or you the right to make a million T-shirts with his name on it and make a profit off his name and his brand. Colin is trying to make sure that doesn't happen."

Follow Jeffrey Martin on Twitter @jaymart

Jeffrey Martin, USA TODAY Sports

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