Is Vince Young INVINCEABLE?

[Matt Breeden]

From Matt Breeden's SportsLawGuru.com

According to this article from SportingNews.com, Vince Young has filed a lawsuit against Rodney Vannerson, Enos Cabell and Tom Roberson related to the trademarks "VY" and "INVINCEABLE". Apparentlly, Vannerson, Cabell and Roberson applied for trademarks related to these nicknames immediately following Texas' Rose Bowl win in 2006. Young says he has been known as VY since childhood and was given the nickname INVINCEABLE while at Texas, but Tennessee fans are lobbying to take it away (...ok, I may have made that last that part up, but you have to admit he hasn't done much lately to earn the nickname). Young further claims that his inability to use the nicknames in advertising, particularly with Reebok, has harmed him financially.

There aren't a lot of facts available as the complaint was just filed, but this sounds like a pretty straight-forward Right of Publicity case. The Right of Publicity is a common law right that was first established by the 1953 case, Haelan Laboratories Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir. 1953). Haelen acknowledges an individual's right to control the public use of their name, likeness and identity. Many states have taken this common law right and expanded it through statute. Further, the case Ali v. Playgirl, Inc., 447 F. Supp. 723, 728 (S.D.N.Y. 1978) expands the Right of Publicity to specifically include nicknames. In Ali, Muhammad Ali sued Playgirl Magazine over its publication of a photo of a nude black man with the title "The Greatest". Ali successfully argued that the "The Greatest" was his nickname and that this use infringed on his right to control his likeness.

In order to succeed in a Right of Publicity case there are certain factors that must be evaluated. These vary from jurisdiction to jurisdiction, but generally the plaintiff must prove that their likeness was used without consent and the plaintiff was in some way injured by the defendants use of their likeness. In addition, some jurisdictions also require that the defendant's use be for a commercial purpose.

Given this general framework, let's take a look at Young's case. The easy elements first. Was Young harmed by the defendant's use of VY and INVINCEABLE? Well, it sure seems that way. If Reebok wanted to use the trademarks on his behalf and now is unable to, there certainly is some harm. While it may not be terrible harm (he's still got a sponsorship with Reebok afterall!, there is still some injury. Second, was the defendants' use for a commercial purpose? Well, we really don't know, but presumable they didn't spend the money on the trademark application just so that they could say they owned the trademark.... For our purposes, I think we can assume the defendants had an intent to financially profit from the trademark. Did they have Young's consent to use and trademark VY and INVINCEABLE? Based on the facts presented by Young, it sure doesn't appear that they did.

If we accept Young's version of the facts as being true, it seems pretty clear that Vannerson, Cabell and Roberson violated Young's Rights of Publicity. However, at this point we only have one side of the story. Clearly there is a reason that this dispute resulted in litigation and wasn't resolved through negotiation. Thus, I'll have to reserve final judgment until I see all of the facts.

Agree, disagree, or think my writing stinks? Let me hear about it.

Matt Breeden (SportsLawGuru.com) is an internationally respected business advisor and attorney based in Indianapolis, IN. His practice is focused on Sports & Entertainment, Intellectual Property, Commercial and Corporate Law. He represents Sports & Entertainment properties, as well as many other businesses, in a variety of matters, including: Broadcast & Digital Media Agreements, Licensing Agreements, Sponsorship Agreements, Commercial Agreements, Athlete/Driver Contracts, Insurance & Risk Management, Employment Agreements, Litigation Management, Mergers & Acquisitions, Business Formation and Corporate Governance.

[John R.(Dick) Troll]

You go astray when you concludethat these terms have been registered " in reference to Vince Young". That is exactly what Vince Young must prove in order to legally prevail. There is nothing in the trademark applications as filed to suggest any connection between these terms and Vince Young. Unless he can demonstrate, with evidence, that others have come to associate these terms with him then there is nothing he can do to stop others from using these terms for clothing, posters or computer games.
And I suspect that it will be difficut for him to make that connection. Because he has not promoted himself widely using these terms.

[Matt Breeden]

Whether or not Vince could establish a Right of Publicity on his own in the terms VY or INVINCEABLE is secondary. The fact that someone else is attempting to trademark the nicknames in reference to Vince Young suggests strongly that their is some commercial value in them. That commercial value, however small, is the rightful property of Vince Young under a Right of Publicity theory. The fact that he is better known by photo, voice or name shouldn't impact his nicknames and rights therein. A third party has no right to commercially benefit from the use of his nicknames when they are clearly being used in reference to him.

I do agree that the point may be shortly moot, as his commercial value in general is certainly on the downward slide.

[John R.(Dick) Troll]

Matt: I seriously doubt that Vince Young has esablished a right of publicity in the letters VY or the phrase INVINCEABLE. He is most well known by his likeness and his full name. On the other hand just because others filed to register these terms does not mean that they have any rights to those terms. And the marketing folks and lawyers at Reebok would know this.
This is most likely an effort by others who know the potential value of these terms to Vince Young to make themselves enough of a nuiance that he will buy them off if the terms really do have any value. My best guess is that this matter will setle on terms that are not disclosed. That is, if Vince Young has any lasting marketing value after this year!