Jonathan Applebaum, Winthrop & Weinstine, P.A.

While major league baseball players are not known for their creative celebrations, Washington Nationals’ rookie phenom Bryce Harper deserves praise for his legal resourcefulness after dismissing a celebration-related question from a Toronto reporter following the Nationals 4-2 victory over the Toronto Blue Jays on June 12, 2012.

The reporter asked Harper if he would enjoy a “celebratory Canadian beer” to commemorate Harper’s critical home run that led his club to victory.  Harper, a 19-year-old Mormon who does not drink alcohol, sneered and replied, “That’s a clown question, bro.”

Harper’s new catch phrase immediately went viral, quickly becoming the highest trending topic on Twitter while t-shirts were soon created baring his original diss.  Without missing a beat, Harper trademarked the phrase the next day, filing it under the “Goods & Services” field, which he applied to “wearing apparel, namely, shirts, t-shirts, sweatshirts, jackets, pants, shorts, hats, visors, gloves, shoes.”  Indeed, Under Armour, with whom Harper has an endorsement deal, has already begun producing an official “That’s a clown question, bro” t-shirt.

Aside from the phrase being regularly used by your friends, family members, national media correspondents, and even a United States Senator, the Denver Beer Co. has since created a Canadian lager called “Clown Question, Bro” and began selling it in time for the Nationals’ series against the Colorado Rockies beginning June 25th.

Demonstrating awareness far beyond his years, Harper insisted that the brewer donate much of the proceeds to the Celena Hollins Memorial Fund, which supports the daughter of a Denver policewoman and single mother who was killed in the line of duty.  The brewery gladly obliged.

Certainly, Harper’s creativity, legal savvy and philanthropic actions have led to and will continue to yield positive public relations that will only enhance his earning power.  Should other athletes and public figures take note and follow suit?  That’s a clown question, bro!™

Yesterday, Under Consideration’s Brand New Blog discussed the redesign of the Nickelodeon trademark. Nickelodeon has decided to drop the well known splat design that encapsulated the NICKELODEON term. As reported by Under Consideration, Nickelodeon’s “splat” has existed in one form or another for over 15 years. Although the orange “splat” has evolved over the years, it was a recognizable symbol of a Nickelodeon product. 

This leads to an important issue, designs are important branding tools. Trademark law argues that the words are the most dominant portion of a trademark because it is the element that consumers use to ask for the goods or services. However, this is not always true. Often times, the word portion of a mark is subordinate to the design component and consumers rely on the design or other matter to identify the source of the goods or services. Good examples include the Nike swoosh or the Under Armour “UA” design. But a design or non-traditional trademark does not need to reach the status of Nike of Under Armour to have a significant market affect. A good example is Christian Louboutin women’s shoes. Most people do not know the brand of any women’s shoe at first blush, but most people recognize the red sole. Well, Christian Louboutin has federally registered the red sole of these shoes. Therefore, it is important not to overlook or discount the branding power a design can have and it is worth considering the highest level of protection for this element of a trademark.