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While NCAA rules prohibit Manziel from profiting from his own success, it can’t stop others

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Posted: Saturday, December 15, 2012 2:31 am

Fame and fortune — they’re what many young athletes want from their careers, yet precious few are lucky enough to achieve. For Tivy alumnus and Texas A&M freshman quarterback Johnny Manziel, half the equation is already there. Winner of the 2012 Heisman Trophy, Manziel spent this week interviewing with national news outlets, appearing on the David Letterman show and spotting billboards of himself on Times Square.

He’s just about the most famous individual in college football.

Yet, the fortune will have to wait.

NCAA rules prohibit players from profiting from collegiate play, and they attempt to discourage others from profiting as well.

But when a college athlete is as famous as Johnny Manziel — when children in Kerrville and across the south are demanding a Johnny Football T-shirt under their Christmas tree — the dilemma becomes far more gray than black and white.

Everyone wants Johnny

Harold Buell, president of Fitness First Sports Inc., a Kerrville business since 1978, has been selling Johnny Football T-shirts since mid-November. It’s one of the hottest selling items in his store.

“I came down here Saturday, and all of a sudden, we’re running out, and more people are coming in,” said Buell, who was as excited as anyone to see Manziel win the Heisman Trophy. “It was almost like a tailgate pre-game like you see in Lubbock or any big college town getting ready for the big announcement.

“It’s amazing.”

The holiday season is only exacerbating demand.

Taylor Finder, 12, and her little brother Tyler, 9, said Johnny Football T-shirt’s are at the top of their wish lists for Christmas.

“We watched all of Johnny’s football games as a Tivy Antler, and he went to (our) church, so it’s really cool to see him famous,” Taylor said. “It would be really cool to have a shirt.”

“I would be jumping up yelling and screaming,” added Tyler, when asked how he’d react to finding a Johnny Football shirt under the Christmas tree.

At Buell’s store, the demand is easy to see. Customers are constantly coming through the doors asking for “those Johnny Football T-shirts.”

“Everyone has a story about how their little 3- or 5-year-old will be so excited when they open that T-shirt up (Christmas morning),” Buell said. “It’s neat. The community is so excited.”

The one group that isn’t excited is the NCAA.

NCAA rules may prohibit athletes and schools from selling Johnny Football merchandise but, as an independent business, Buell has nothing to fear from NCAA rules. The organization has no legal authority over what Buell sells on his shelves.

It does, however, have power over universities and student athletes.

According to NCAA bylaw, “If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics.”

Texas A&M doesn’t want Manziel’s eligibility to be compromised, so it is obligated to protect Manziel’s name and likeness.

It’s also obligated to protect his nickname: Johnny Football.

“Even before the Alabama game, we started seeing some Johnny Football merchandise posted on the Internet,” said Jason Cook, Texas A&M vice president for marketing and communications. “We knew we had to take aggressive actions then to not only protect his eligibility as a student athlete but also protect him from third parties wanting to use his name without his permission.”

Cook said third parties profiting off Manziel’s name or likeness would not immediately jeopardize Manziel’s eligibility, but per NCAA bylaws, A&M has a responsibility to try to get them to stop.

A lesson from a Honey Badger

To help the university tackle the unfamiliar territory of policing a nationally famous student-athlete’s likeness, A&M officials turned to their colleagues at LSU, who contended with the run-away popularity of former defensive back Tyrann Mathieu’s nickname, Honey Badger, last year.

“We were monitoring the more popular websites and ended up getting a lot of tips from locals and people outside Louisiana when there were products out there,” said Andrew Donovan, LSU’s director of compliance/education and communications. “It was T-shirts to sweatshirts to beer koozies with Tyrann’s likeness on them, when we got those, we took action and issued cease-and-desist letters to the vendors.”

As intimidating as a cease-and-desist letter may sound, it’s mostly a scare tactic. While LSU — and A&M — could prevent the printing of any merchandise that included university logos, Donovan admitted LSU and the NCAA had no legal basis to prevent third parties from selling Honey Badger merchandise. All they had was old-fashioned persuasion.

“Here’s the interesting part,” Donovan said. “The athletes and those acting on their behalf had to take steps to make people stop. Once we’ve taken our steps, we’ve fulfilled our end of the bargain. If they continue selling the product, as long as we show the NCAA we asked them to stop, we fulfilled our obligation, and no more is required of us. We really have no power.”

Donovan’s endeavors were more successful than he expected them to be, but he conceded that, at the end of the day, third-party businesses can sell all the Honey Badger or Johnny Football gear they want. There are no legal grounds on which a university can stop them.

Trademark question

That may seem the end of the tale, but in the story of Johnny Football, it’s not.

The Manziel family is taking an extra step the Matthieus didn’t take; they’re pursuing a trademark application for Manziel’s nickname, Johnny Football.

“(Before the Alabama game), we had a feeling (Johnny Football) would grow, and a lot of people would want to profit off that,” Cook said. “About the same time, an attorney representing the Manziel family reached out and indicated they felt the need to protect the mark; not just for now, but for future consideration.

“I just want to stress this is about protecting Manziel currently and his eligibility as a student and also any future interest in that mark,” Cook said.

Manziel’s family’s reasons for trademarking Johnny Football are simple: Two or three years from now, he’ll go pro, say those representing the family. When he does, he’ll want to sign a licensing deal and sell his own Johnny Football T-shirts. Any Johnny Football T-shirts sold now dilute the market place and effectively prevent Manziel from realizing that profit down the road.

By applying for trademark registration for Johnny Football now, the Manziels hope to protect their intended future use of the name.

The problem is, someone beat them to it.

Trademark war

On Nov. 1, Stephen Hollas, a College Station attorney with the Holt & Hollas PLLC law firm, filed a federal trademark application to register Johnny Football on behalf of Kenneth R. Reynolds Family Investments LP and Kenneth R. Reynolds II.

Hollas didn’t return calls to his office for comment on this story, and the case grows only more mysterious from there.

Records of Reynolds Family Investments are hard to come by. Officials at A&M say they have no information about the group or its intentions. Jay Jordan, an attorney who’s representing the Manziel family on behalf of the J. Bennett White P.C. law firm in Tyler, said he didn’t know anything more of the group beyond a name on a piece of paper and declined to speculate their motives.

“In the end, there will be one application,” Jordan said. “Any competing applications will be opposed vigorously by the Manziel family. We will be taking all appropriate steps to see that our application is the one that’s ultimately approved.”

For the Manziel family, things aren’t as dire as they seem.

Michael Paul, an attorney with Gunn, Lee & Cave P.C. law firm in San Antonio, who specializes in trademark law, discounted Reynolds Family Investment’s trademark claim.

“Some people think about it as being analogous to cyber squatting,” Paul said. “Someone thinks they can get rich real quick by registering various domain names for GM, and then GM will have to pay them bunches of money to get that URL — not so, with trademarks.”

When a trademark application is filed for the name or nickname of someone who’s still alive, the individual registering the trademark must prove they have the blessing of the living individual.

With their own trademark application coming soon, the Manziel family won’t be giving that blessing, according to Jordan.

Still no guarantees

While the Manziels’ chances of denying anyone else a trademark on Johnny’s nickname are strong, the case for their own trademark registration isn’t as clear cut.

Even after the Manziels jump the hurdle presented by Reynolds Family Investments, Paul said it still could take take four to five months for them to hear a response from the United States trademark office regarding their own application. If registration is initially refused, the process could drag out another six months or more as the application is prosecuted.

Legally, the Manziels have no power to protect the nickname from commercial use in the meantime. Just persuasion.

“There are no authorized products available in the marketplace,” Jordan said. “Anything purchased is of dubious quality and is being opposed by the family in particular.”

It’s an argument that might have to last the next three years. There’s also no guarantee the Manziels’ trademark registration will be granted.

“As part of this process, you have to provide a specimen of the goods that bear the mark,” Paul said. “You have to show it’s used in commerce some way.”

Caught in a catch-22, the Manziels are prohibited by the NCAA from selling Johnny Football T-shirts and have no goods to present to the trademark office as proof of commercial use, making it tough for them to prevent others from selling products.

“If you’re not providing goods or services in connection with the trademark, there’s no way you can prevent anyone else from using the mark, because you have no trademark rights, and if you have no rights, what can you do? Nothing,” Paul said.

No easy answer

At the end of the day, when it comes to selling Johnny Football merchandise, Texas A&M can’t stop it, the NCAA can’t stop it and, until their application for trademark registration is ruled on, the Manziel family can’t stop it, either.

All they can do is argue their case.

Yet, there sits young Tyler and Taylor, blissfully unaware of trademark law, NCAA regulations or economic theory. They want nothing more than T-shirts with their hero’s name printed across them come Christmas morning.

“Maybe everybody has to give a dollar for the right (to use Johnny Football); I’m not opposed to it,” Buell mused, although this idea, too, is against NCAA regulations.

“I don’t want to step on anybody’s toes. I don’t know where it stops. I’ve never really been down this road. It’s an interesting phenomenon,” he said.

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