Could you trademark behaviors of a professional esports player?
I came across an interesting question online a while ago (from Ryan Fairchild): “If an esports player did some recognizable set of actions at the beginning of each match, and fans could recognize who the player was just from those actions, could the player eventually claim inherent distinctiveness and claim trademark rights in those actions?”
My opinion is that it would be very difficult to get trademark protection for such “signature moves” in esports—but it would be very interesting to try.
1) What does a trademark need? Can this idea of “signature moves” meet the minimum requirements?
A trademark has to be connected to some good or service in commerce. It would be novel to present streaming and esports as the good or service, but not out of the question. You probably wouldn’t be able to stop other people from doing the same move, but you might be able to sue someone for using the signature moves if it makes people confused about the identity of the player and the impostor profits from it. (That’s not exactly the statutory requirement, but it’s the most favorable set of conditions for someone trying to sue in this case.)
Another important requirement is that the signature moves not have functionality. Optimized pathing, strategically advantageous positioning, etc. are all likely to be out of the question. Trademarks, generally speaking, cannot have a functional purpose. If something functional were protected by trademark, it could prevent people from using or accessing that functionality. Trademarks last indefinitely, provided that they remain in use in commerce and the registration is renewed, so any functionality would be protected indefinitely. Patents are the category of IP that is meant to handle functional subject matter, and patents have the shortest lifespan of the four primary categories of IP (about 21 years, depending on the patent type).
2) How does trademark law intersect with identity?
Trademarks are usually about brands, which have usually been associated entire companies. Trying to tie a trademark to an individual is somewhat more tricky, but not unheard of.
After popularizing a pose of kneeling and placing a closed hand against his forehead, athlete Tim Tebow registered his trademark in 2012, (but he apparently decided not to renew it, so it is now cancelled under Section 8—see trademark Reg. No. 4263370). From the perspective of trademark law, there was no confusion about whether someone else doing the Tebow-ing move was, in fact, Tim Tebow . The question was whether merchandise referencing the move was affiliated with or authorized by Tim Tebow. So, a signature move, by itself, really doesn’t qualify for trademark protection – whether it’s on the football field or on a screen depicting a football field. But Tebow’s main concern in getting his trademark had more to do with preserving some measure of authenticity. Because it was a deeply personal matter for him, he was trying to use trademarks to protect something about his identity, reputation, and public persona. It’s not the primary role of trademark law to offer that kind of protection, but there might be a way to make that work.
Fortnite cases drew a line about the copyright protections around dances- particularly length (and, even though the courts and copyright office didn’t say it, let’s say “complexity”). I still hypothesize that trademark protection had more potential, though it would require “building a brand” around the dance. For example, “The Carlton” is a dance actually known by the name of the character who performed it on a long-running tv series, and the performance of it generally evokes that character. In contrast, “flossing” doesn’t really evoke… backpack kid? Or whomstever?
3) Is the persona of the player/athlete a character? (Or Does it depend on a philosophical reconciliation of identities?)
There aren’t a lot of federal laws protection one’s right to public persona or right to likeness. But California and New York have a lot of celebrities, who tend to be the most frequently involved in cases about right to likeness.
So, here’s where the thinking gets experimental: What if we think about the persona of the esports player or streamer as both the mechanism by which monetization occurs, and as the likeness subject to protection? There is probably an entire thesis’ worth of content in unpacking the splitting and merging of identities, but I think that there could be cases where the identity of the streamer/player could be sufficiently closely connected with commerce to satisfy the requirements of the USPTO. This might be the best case for the necessary connection between “a good or service in commerce” and the “signature moves” that an esports player might be looking to protect by trademark. I don’t know how the USPTO might react to streaming as a good or service in commerce, but I think there is enough evidence to draw upon to present a sufficiently persuasive case for the point that streaming and esports meet the threshold of interstate commerce.
As far as I can tell, the real challenge to getting trademark protection for a signature move in esports is monetizing it in a way that satisfies the requirements for a trademark. I think the association and the distinctiveness are comparatively small challenges. There might be something to the idea of a special emote that only the members of a particular esports organization have—and then any use of it might reasonably be presumed to be an authorized use, which would help make the case for an esports organization preventing the unauthorized use of the emote.