Social Justice, Trademarks, and Commerce: A Close Critique of Colin Kaepernick’s Trademark Filing

By: Eric St. Bernard
 
Colin Kaepernick – 
Former football player, or activist? Social justice, or jersey sales? Are Colin Kaepernick’s courageous stance against police brutality, a Nike commercial featuring the former NFL quarterback, and a subsequent application to trademark his face each mutually exclusive, or do they coincide with each other? Better yet, I posit, and any reasonable person can deduct, that the commercials and media attention are direct catalysts of Kaepernick’s metaphoric trip to the United States Trademark and Patent Office. This realization raises additional, perhaps more prodding questions: Will Kaepernick’s immersion into the commercial space, by way of establishing his own Intellectual Property rights, make progressive supporters question his motives? Is Kaepernick just one example of consumers’ social perspectives and political viewpoints playing a part in our purchasing decisions? Are activism, social justice, and human rights moral vehicles to “distinguish[ing] the source of the goods of one party from those of others,” a necessary requisite for Trademark registration?
 
Colin Kaepernick was drafted in 2011 by the San Francisco 49ers and led the team to Super Bowl 47 in 2013 as their starting quarterback. Notwithstanding their loss to the Baltimore Ravens, the second-year quarterback had an impressive game on one of the sports world’s biggest stages, throwing for 302 yards and a touchdown, and running for an additional 62 yards and a touchdown. In fact, Kaepernick’s statistics were so impressive that he joined Hall of Famer Joe Montana as the only two quarterbacks to throw for more than 300 yards and run for more than 50 yards in a Super Bowl. However, Kaepernick’s meteoric rise to social relevance was not sparked by what he did on the on the football field, but instead, what he did on the sideline. 
 
With three years standing between Kaepernick and his highly publicized Super Bowl appearance, the quarterback sat down during an NFL pre-season game while the National Anthem was playing. Asked for his reasoning behind an act deemed unpatriotic by nationalists, Kaepernick rebutted with the following: “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football, and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.” Kaepernick went on to kneel while the National Anthem played for the remainder of the 2016 season. Since that day in August of 2016, Kaepernick has received support, intense media coverage, and his fair share of backlash for his continued form of protest. For the 2019 Super Bowl, prominent music artists like Cardi B, Rihanna, and Jay-Z reportedly declined invitations to perform at the Super Bowl halftime show in response to Kaepernick’s exile from the NFL. In addition, in the days leading up to the big game, athletes, entertainers, and social activists such as LeBron James and Angela Davis were donned in Colin Kaepernick Nike jerseys as an ode to his courageousness. 
 
When Nike released a conversation-sparking commercial featuring Kaepernick in September 2018, the former 49er, albeit involuntarily, was far removed from his athletic prowess. Instead, he stood as a personification of racial inequality and resistance against oppression. Perhaps in that vein, Kaepernick (through his company Inked Flash) filed a trademark application with the United States Patent and Trademark Office on October 5th, 2018 – nearly a half-decade after his first and only Super Bowl appearance. The trademark, you ask? An image of Kaepernick’s face, to be used on hairspray, jewelry, cell phone cases, and clothing. Moreover, Kaepernick intends to use the image to host classes, workshops, and seminars for self-empowerment.
 
With the context provided, I opened up clinic class discussion to critique the following: does Kaepernick’s trademark application, with intent to commercialize his face, deride his stance on social justice? Can the worlds of capitalism and social consciousness coexist? If so, are there additional ‘social rules’ that Kaepernick must overcome under these circumstances?