Matt Hardy was handed a potential setback from trademarking “Broken Matt Hardy.” The USPTO issued an Office Action which is denying the process for the “Broken Matt Hardy” trademark application. The good news is that Hardy has a chance to respond to the initial decision.
Hardy applied to register his “Broken Matt Hardy” gimmick with the United States Patent and Trademark Office on March 1, 2017. Last week, the USPTO issued a response initially denying the Trademark.
Hardy identified the first use of the trademark from April 20, 2016. With existing use of an applicant’s trademark, you must provide what’s called a “specimen.” This is to show the use of the trademark in commerce and your prior use (of the trademark before applying with the USPTO). But the digital images include two YouTube video images showing the use of Broken Matt Hardy in two promotions, and the third is an “EventBrite” screenshots for tickets to a talk featuring “Broken Matt Hardy.” While all of these show the use of the name, these do not give rise to a trademark.
The Office Action notes:
Personal names (actual names and pseudonyms) of individuals or groups function as marks only if they identify and distinguish the services recited and not merely the individual or group. In re Mancino, 219 USPQ 1047 (TTAB 1983) (holding that BOOM BOOM would be viewed by the public solely as applicant’s professional boxing nickname and not as an identifier of the service of conducting professional boxing exhibitions); In re Lee Trevino Enters., 182 USPQ 253 (TTAB 1974) (LEE TREVINO used merely to identify a famous professional golfer rather than as a mark to identify and distinguish any services rendered by him); In re Generation Gap Prods., Inc., 170 USPQ 423 (TTAB 1971)(GORDON ROSE used only to identify a particular individual and not as a service mark to identify the services of a singing group).
Matt Hardy USPTO Office Action by JASONCRUZ206 on Scribd
As an example of a successful trademark of a wrestler’s name, the WWE applied for the trademark of “Daniel Bryan.” The WWE registered the character name as a “Service Mark” and a Trademark.
The specimen for the Bryan service mark is one from the talent roster on NXT.
The trademark specimen for Bryan included an image of the character toy action figure.
Payout Perspective:
The Broken Matt Hardy trademark application can still be successful if Hardy’s representatives amend the application to include a specimen showing a service mark using Broken Matt Hardy. Of course, if that has not happened yet, they could always convert the application to an “Intent to Use” application which means they plan to use the trademark at some point in the future. Notably, the Daniel Bryan Service Mark is a web site screen shot of his NXT bio whereas you can argue it is similar to what Hardy submitted. Hardy should have six months from the date of the issuance of the Office Action to respond or the application will not go forward.
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