In the realm of trademarks, there exists a misconception that anything and everything can be trademarked. However, this notion is far from the truth.
Trademarks, whether under common law or federal registrations, do not operate in isolation but require actual utilization for specific goods or services offered in commerce. For federal registrations, this entails use in interstate commerce. The act of attempting to monopolize a clever phrase or a trending expression solely for the purpose of establishing control over it is not permissible and is termed as “trademark trafficking” in the United States. These principles extend even to one’s own name.
Despite these stringent requirements, celebrities and influencers often endeavor to trademark their names and associated catchphrases. Recently, Travis Kelce, the Super Bowl-winning tight end for the Kansas City Chiefs and the current partner of megastar Taylor Swift, has made such a move.
In October 2023, Kelce, acting through his former business TMK Enterprises LLC, initiated the process of trademark protection for “TRAVIS KELCE” to be used on various items such as lapel pins, printed posters, hats, hoodies, buttons, bobblehead dolls, promotion of others’ goods and services, and entertainment services like personal appearances by a sports celebrity. Similar applications were also filed for phrases like “KILLATRAV,” “ALRIGHT NAH,” and “FLIGHT 87.” Concurrently, his company Kelce Food Group LLC sought trademark protection for “KELCE’S KRUNCH” covering breakfast cereals that might be featured at “TRAVIS KELCE’S KITCHEN,” a mark previously filed in June 2023.
Kelce’s proactive approach to securing rights over all things “Kelce” aligns with his growing fame due to his high-profile relationship. However, it’s crucial to note that being the first to claim rights in a word, phrase, or name does not automatically confer those rights – actual use in commerce is still required. While the United States Patent and Trademark Office offers “intent to use” applications, these applications act as a temporary hold on the mark, necessitating actual use within three years of notice from the Trademark Office. Failure to do so leads to the abandonment of the application, returning the mark to public availability. Kelce’s recent applications fall under the “intent to use” category.
Therefore, Kelce must demonstrate actual use and the distinctiveness of these marks for their intended purposes. Regardless of his fame, he must adhere to the same rules as everyone else. This means proving that these marks have acquired the necessary distinctiveness for the goods or services they represent – fame alone does not grant inherent trademark rights over his name. This distinction is important compared to his “right of publicity,” which protects against the unauthorized commercial use of a famous individual’s name, image, or likeness.
As for Kelce’s actual plans regarding these trademarks – whether they are intended for commercial use, preventing unauthorized use by others, or launching new business ventures – remains to be seen. His actions have stirred discussions on social media, with some applauding his business acumen while others question the practicality of his trademark applications, suggesting why he didn’t trademark “Taylor’s Boyfriend” instead.
Interestingly, Kelce’s application for “TRAVIS KELCE” has faced initial refusal due to a potential likelihood of confusion with previously filed applications such as “TRAVIS KELCE’S KITCHEN” and “NEW HEIGHTS WITH JASON & TRAVIS KELCE,” both intent-to-use applications filed by New Heights HoldCo LLC.* This situation may be resolved through appropriate licenses. However, the overlapping ownership entities and their competing applications raise questions about Kelce’s overarching strategy in commercializing goods and services under these diverse trademarks.
