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Slam Dunk? – NBA Playoffs give rise to Interesting IP Issues

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June 6, 2019

Raptors fever has firmly taken hold, not only here in Toronto, but across Canada (and arguably, even in the United States where many basketball fans appear fatigued at the prospect of seeing the Golden State Warriors win the championship yet again). The final series of the National Basketball Association’s playoff season is being played between the “upstart” Toronto Raptors and the experienced five-time champion Golden State Warriors based in Oakland, California.

The series has already made history, being the first time that a non-US team has qualified for the finals. Game One kicked things off in Toronto last week as the first NBA playoff game held outside the US.

This has undoubtedly made for great entertainment. Aside from the emotional ups and downs of rooting for your home team, the series has also given rise to some interesting intellectual property issues.

Take the Raptors’ logo, for instance. The “claw and basketball” design shown below is featured on the team website and other promotional materials:

There is also a trademark registration for this version:

One of the older team logos included a depiction of a dinosaur (the word “raptor” referring to a type of predatory dinosaur):

Dinosaur drawings appear to have all but disappeared from the logo in recent years. The trademark issue which arises from this is whether or not the registrations for the older “dinosaur” logos could be struck for non-use. Under Canadian laws, a trademark registration that is at least 3 years old can be removed from the trademarks register through “summary cancellation” proceedings if the owner of the registration cannot prove that the mark was used during the immediate past 3 years.

So if an older logo is completely phased out in favour of a newer one, any registrations for the older logo can be struck. However, as in the case of many sports franchises, older logos often continue to be branded onto “classic” or “collectible” merchandise. The Raptors are no exception, and a quick perusal of the online NBA store shows all manner of merchandise festooned with dinosaur logos available for purchase. Such recycling and repurposing of older logos help to maintain the associated trademark registrations in good standing.

Social media has also exploded with hashtags promoting the home team, such as #WeTheNorth. The phrase WE THE NORTH is a registered team trademark covering a variety of merchandise and other services. Thus, no one could put WE THE NORTH on a T-shirt and sell that T-shirt unless licensed to do so by the team. However, simply using the hashtag phrase on social media such as Twitter to express support for the team would not constitute trademark infringement.

The same thing can be said about #6in6, which refers to the prospect that the Raptors could win the championship in 6 games. The other “6” refers to the city of Toronto, and is a term that was popularized by rap artist and Raptors super-fan Drake. (It is an oblique reference to 416, which is the original area code for the city.) Posting the hashtag on social media as an expression of support for the team would not infringe any trademark rights. However, someone could claim trademark rights to “6in6” by using it as a brand for merchandise.

Finally, other brand initiatives are directly linked to individual players. For the Raptors, Kawhi Leonard can fairly be said to be the “face” of the team. Mr. Leonard’s first name (pronounced KAH-WHY for the uninitiated) has given rise to all sorts of clever puns, such as KAWHI ME A RIVER, a phrase which appeared on Drake’s sweater during the semi-final series against the Milwaukee Bucks. Perhaps predictably, the NBA has just released a T-shirt featuring this phrase. (Another personal favourite is WE WILL NOT BE KAWHI-ET.) Then there is the creatively named “Ka-wine & Dine” program in which Toronto restaurants are offering Mr. Leonard free food for life if he agrees to re-sign with the Raptors during his free agency after these playoffs. This is by all appearances a licensed initiative in which participating establishments use a sticker featuring this image:

In the spirit of Toronto the Good, there are tie-ins with various charities encouraging donations from fans.

So no matter what type of sports fan you are, intellectual property underlies many aspects of what people see and buy. This is why the World Intellectual Property Organization set the theme of this year’s World IP Day as “Reach for Gold: IP and Sports”.

Stay tuned to your screens to find out which team will carry the day in these historic NBA championship finals.

My prediction? 6 in 6! GO RAPTORS!!