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LINtellectual Property Rights

While Jeremy Lin continues to weave a fast break around the world and generally inspire anyone who champions an underdog (particularly arousing Asian-Americans, Asian nationals, Ivy-Leaguers, and those of Christian faith), the NBA sensation has recently attempted to register a trademark for one of his monikers, “Linsanity.”

A trademark is typically a distinctive symbol or, in this case, phrase used by a legal entity to identify and distinguish itself. As a prospective owner of “Linsanity”, Jeremy may initiate legal proceedings to prevent its unauthorized use. However, it appears two California individuals have already also paid the $1,625 filing fee to use this phrase on apparel: An importer/exporter who “wanted to be a part of the excitement;” and a former volunteer basketball coach of Lin (see www.linsanity.com) who is currently selling “LINsanity” t-shirts featuring number 17 in the Knicks’ blue and orange colors.

Per complicated federal trademark laws, the first person to use a given mark like “Linsanity” has exclusive common-law rights in a given state, while a registered trademark offers legal protection nationwide. When deciding on a trademark application, the Trademark Office considers who first used the mark, whether the mark is unique or merely descriptive, and whether the mark creates confusion. Those three factors don’t appear to favor the apparently opportunistic “fan” who was “very proud of Jeremy.” Lin’s ex-coach also could run into a problem with California’s “right to publicity” law which protects celebrities’ names from commercial use without their permission not to mention Madison Square Garden and New York’s basketball brand.

Don’t try to explain it, dissect it. We’re just in the middle of it and enjoy it. Especially if you are a Knick fan… It’s a great American story. A great American story.

– Spike Lee, when asked about Linsanity on MSNBC

Yes! I have a raging case of Linsanity. I have been declared legally Linsane. My symptoms.. linsomnia, restless linsyndrome and lintestinal blockage!

– Stephen Colbert, The Colbert Report

Lin’s legal representative says that “We’re prepared to protect his intellectual property rights.” The U.S. Trademark and Patent Office reports it has not granted “Linsanity” to anyone yet pending a review of all who have applied. The application process starts with the examining attorney’s review and approval. The lawyer publishes the mark for 30 days and any parties who believe they may be harmed can file opposition. Gary Krugman, a partner at the Washington-based firm Sughrue Mion, said that he would tell Lin to file his own application and contest whichever of the others gets published, “I have a feeling both of these guys are small operators,” he said. “If Jeremy comes in with a big law firm they won’t be able to hang with him.”

While many people may look to capitalize financially on the phenomenon, there are additional legal, aesthetic and ethical implications in protecting Lin’s name. Copyright law looks disapprovingly on what amounts to identity theft. Surely, controlling the merchandise would reign in images fostering racial stereotypes and also restrict Jeremy’s associations to products and services that he endorses.

Postscripts:

On Sunday, Lin led the Knicks to another improbable win over last year’s NBA Champion Dallas Mavericks (Vince “Vinsanity” Carter—who plays for the Mavericks—should check whether his own trademark rights have expired).

Speaking of common-law rights, the term “cognitive renaissance” shall be used in describing member(s) of marginalized groups establishing renewed concepts of self from unexpected sources (as opposed to reducing any tension arising from cognitive dissonance).

Steven Jobs (1955-2011), former Apple Chief Ethics Officer

A repeated criticism of Steve Jobs focused on Apple’s lack of philanthropy in relation to his contemporaries. While the question of whether corporations must give away part of their profits follows naturally from a stakeholder view, let us set aside the larger business ethics concern for a more personal question.

Jobs’ lack of what Aristotle called liberality (generosity) provoked the continued accusation that he was less moral or ethical than his peers. Public generosity is praiseworthy but, as a sole moral criterion, represents a limited view of morality. By broadening the Greek notion of ethics [from ethikos toward ethos], we find character, moral structure, a harmonious relationship between parts, and an accustomed place. Jobs was a private individual and we may never know the amount or lack of financial giving behind the scenes. However, we do know the public impact he made on our collective ethos:

He structured the way we relate to music and each other, helped organize the relationship between information and the disparate parts of our lives, and offered us a shared, accustomed place to express ourselves within the confines of his technology.

Those who have followed Jobs over the years will make no claims of sainthood; in fact, his leadership style was often reported as ruthless and borderline abusive. This “artist” certainly is not an ethical archetype in the traditional sense. But one thing he has done is help modify the ethos for how we live life (whether we own an iProduct, an Android OS device, or “refuse to participate”) in this revolution of time and space. The way our world is structured is no longer the same, and for this grand contribution to ethics, Jobs may be considered (per Aristotle) a magnanimous albeit morally-complicated man.

A Social ‘Theft’work?

The Winklevoss twins represent two enemies that Facebook founder Mark Zuckerberg made in the process of designing The Social Network (2010). Did Zuckerberg steal the inspiration for Facebook from the brothers’ idea for their website? The answer may hinge on the divisive issue of intellectual property.

The debate centers around the intrinsic right to own non-tangible, creative ideas. According to traditional patent, trademark, and copyright laws, intellectual property represents real ownership of intangible assets. Dissidents like Richard Stallman−a software freedom activist−argue that intellectual property creates a ‘bias’ toward property rights by confusing non-physical monopolies with ownership of physical things.

Regarding the creation of Facebook, courtroom and journalistic evidence shows no formal contract between Zuckerberg and the Winklevosses . . . only interesting and entertaining “dorm-room chit-chat.” A mere week after beginning what Zuckerberg referred to as ‘the dating site,’ he started working on a separate ‘Facebook’ project. Zuckerberg appears to have considered the two as competing for the same users’ attention, but also seems to have regarded them as different in key ways. While Zuckerberg does appear to have intentionally strung along the twins with the goal of making his own project the more successful launch, the Winklevosses $65 million lawsuit settlement seems more than fair−especially considering that the entire dispute took place over two months in 2004 and that in the years since, Zuckerberg has built Facebook into a massive global enterprise.

The Winklevoss twins are demanding that the case be reopened not for money but for honor. If there is no such thing as intellectual property rights, then there was nothing to steal and additional demands represent mere ego and greed. If intellectual property represents real ownership of intangible assets, then the battle between information highway robbery and issues of gentlemanly agreement should return to the top of Facebook’s News Feed.

Update: the Winklevoss suit against Facebook was thrown out by a federal judge in Boston as reported on July 22, 2011.