What would it take to become a trademark Good Samaritan?
On July 26, 2021, Jhulia Rayssa Mendes Leal became the thirteen-year-old silver Olympic medalist in Women’s Street Skateboarding at the 2020 Tokyo Olympics. People around the world watched as Leal jumped, slid, and flipped her way to silver. Throughout the competition, she frequently flashed a big smile revealing the telltale sign of a young teenager - braces.
Leal is known by the nickname “Fadinha” which means “little fairy” in Portuguese. The name comes from a video of her nailing a heelflip at only seven years old. The video of the budding skateboarding prodigy was noticed by Tony Hawk and ultimately went viral. The kicker? She did it all while wearing a bright blue fairy costume, which spurred the nickname Fadinha. With the charismatic thirteen year old seemingly destined to become a star, her name, image, and likeness - including the Fadinha moniker - could suddenly be worth big bucks.
This is why everyone was surprised when Leal returned to Brazil to find that attorney Flavia Penido had already registered a trademark for Fadinha. According to Penido, she noticed that the trademark was unclaimed and was worried that someone might take advantage of Leal by stealing her trademark. Attorney Penido reportedly plans to gift the trademark to Leal free of charge. This story quickly spread as a tale of a kind-hearted trademark attorney looking out for a young teenager.
So this begs the question: can there be more trademark Good Samaritans? Can any one of us claim a trademark on behalf of a friend who cannot or has not yet protected their name? Will this spur a generation of trademark saviors?
In the United States, the answer is most likely no.
No Good Deed Goes Unpunished
Unfortunately, “gifting” a trademark probably wouldn’t work under US law. This is because anyone applying for a trademark must affirm (1) that they are the owner of the trademark, (2) that they are using the mark in commerce (or intend to do so), and (3) that no one else has a right to use the mark. A trademark Good Samaritan who was trying to rescue a trademark on someone else’s behalf would be unable to truthfully make these affirmations. If they went ahead and knowingly did it anyway, this could be considered fraud on the Trademark Office. Fraud would not only result in the trademark being cancelled, but could also expose the applicant to legal liability.
What’s a Good Samaritan to Do?
Instead of applying for someone else’s trademark (and committing fraud in the process) there are other ways for well-meaning people to help others protect their intellectual property. The easiest way is to simply educate others about intellectual property and encourage them to pursue protection if they haven’t already. Ideas for larger entities like non-profits include sponsoring grants for entrepreneurs - particularly entrepreneurs from historically marginalized communities - to get trademarked.
US trademark law may be different from Brazil, but there are still ways to make a difference and to look out for each other.
Thanks for reading the Bevel Law Blog! While this information is hopefully helpful to you, nothing in this blog is intended to be legal advice. Always consult a lawyer before making any legal decisions based on topics in this blog.
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