How Athletes Can Protect Their Personal Brand with Intellectual Property Law
Gregg Sultan specializes in soft intellectual property law, including trademarks, copyrights, trade secrets, rights of publicity and related areas.
Having worked in trademark law for nearly 20 years, Gregg handles everything from clearance, the registration process, licensing, exploitation of the brand, and transactions, to proper use of brands and protecting, policing and enforcing trademarks, and domain name issues. He represents clients across several areas, including apparel, fashion, entertainment, consumer goods, food and beverage, hospitality and sports.
Gregg, what are you most excited about today?
I'm really excited about working with businesses whose value is in their intangible properties, such as their trademarks, brands, copyrights, and their trade secrets, ideas and know-how that may be unique to them, like their business processes, training and the knowledge embedded in their human capital that gives them an advantage over their competitors.
In addition, I am increasingly working with famous individuals, including athletes, to help advise them on how best to protect their own personal brands and preserve the enormous goodwill they have among their fans.
Part of that is ensuring that the way they present their name, likeness and image in endorsements and other commercial activities is consistent with the quality and personality of the famous individual that his or her fans have come to expect and making sure that the person maintains control over that.
How does Gregg define an epic athlete brand in terms of trademarks, copyrights, licensing and transactional matters, and new media and technology transactions?
An epic athlete brand exploits all of these avenues and channels in an intelligent way, which is genuine to the athlete's persona and personality. In other words, if the way an athlete is exploiting his or her name, brand, image and likeness furthers something genuine about themselves that connects with their fans, then that is a huge win and won't be perceived as "fake" or contrived, but instead classy and the real deal.
It would reinforce and further the qualities in the athlete that make him or her who they are and that appeal to their fans. The key from a legal perspective is to make sure that the athlete maintains control over how all of that is presented to the public through provisions in contracts, and by protecting the underlying intellectual property.
Get more athlete brand inspiration from #TheCompletePlayer showcase on Instagram:
What's your favorite athlete brand at the moment, and why?
I would have to say Kobe Bryant. One thing I love about him is that he has deliberately plotted out his sports career, the things he wanted to achieve, and then diligently figured out what he had to do to get there and did it. He seems to be doing the same thing in his post-NBA career and commercial activities — a well thought-out and consciously driven strategy that he maintains control over, therefore keeping everything true to what he is all about and what he believes in.
The perfect example is winning the Oscar for Dear Basketball. Kobe is an intellectual guy. He turned this strength, a poem he wrote, into the animated short that won the Oscar. This was brilliant and is consistent with who he is and what his fans love about him.
When you look across the athlete brand landscape, what's the one thing you think more athletes should be doing?
I think similar to my answers above, they should be thinking about what their unique value is and how they connect with their fans. What is it about them that the fans love? Once they know that, they will know how to present themselves publicly, and then they should be using intellectual property laws to protect themselves and their brand.
What’s your best advice for athletes who want to protect themselves legally against infringers and other common related issues?
I would make sure they are adequately protecting their brand and other intangible assets by utilizing trademark, copyright and other intellectual property laws, including filing to register those assets with the USPTO or Copyright Office, using the proper notices of ownership and claim of rights on all their websites, social media and other materials, and maintaining control over how they are presented through proper provisions in agreements that relate to use or license of those assets.
And then make sure they are policing those rights, so they are aware of infringers and can take them down.
Based on your knowledge and expertise, what's the future of athlete branding and marketing?
I think the future of athlete branding and marketing will mirror the future of the economy in general.
I am currently reading a book titled Capitalism Without Capital, The Rise of the Intangible Economy by Jonathan Haskel and Stian Westlake. The premise of the book is that. in the 21st Century, there has been a big shift in the economy away from tangible assets like factories, inventory, plant, equipment and computers, towards intangible assets like design, branding, software and know-how.
Businesses in the U.S. and the United Kingdom are now investing more in these intangible assets than tangible ones. The returns on these investments can be huge, and are easily scaled.
As this trend continues and accelerates, athletes can benefit in a big way because their whole value is in the intangible things about them, their name, image and likeness, their own personal brand and how they present to the public. It will be more important than ever to exploit their brand in a way that is "right" for them and appeals to their fans and the public, and then protect it using intellectual property law.