When Did Victor Wembanyama Become “Wemby”?
By Michael Antone, Counsel at Nemphos Braue
Victor Wembanyama, aka Wemby, has rapidly become one of the more recognizable basketball players in the world. His extraordinary rise has generated enormous commercial interest, not only from sponsors and licensees, but also from third parties. For example, there have been fifteen US TM application involving the word “Wemby” since the beginning of 2023, only one of which appears to be associated with Victor Wembanyama. Wemby’s notoriety has also placed him center stage with regard to name, image, and likeness (NIL) rights, and US trademark law, which prohibits the registration of marks that “falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute”, 15 USC §1052(a) – Section 2(a) of the Lanham Act.
In one of the third party US TM applications for Wemby, there is a pending ex parte appeal before the Trademark Trial and Appeal Board (TTAB) that raises the question of when Wemby became sufficiently well-known as the nickname of Victor Wembanyama. The applicants for U.S. Trademark Application Serial No. 97752244 contend that their intent-to-use (ITU) application was filed before Wemby became so uniquely and unmistakably associated with Victor Wembanyama that consumers would presume a connection.
If the applicant’s contentions are found persuasive by the TTAB, then the applicant may be able to register the Wemby mark, irrespective of the subsequent significant association of Wemby with Victor Wembanyama. It is also noteworthy that the applicant appealing the refusal also has another pending US TM application for Wemby, as well as four other dead US TM applications for marks involving Wemby.
In 2024, Wemby filed suit in the Western District of Texas (Austin), 1:24-cv-01234-RP, for trademark infringement and misappropriation of Wembanyama’s name, image, and likeness. The suit was settled shortly thereafter and the defendant’s US TM applications for EL WEMBY and Wemby’s World went abandoned, although the website, https://wembysworld.com/, was up with a launching soon notice.
For trademark owners, the “Wemby” disputes highlight the need to protect your trademarks early in the branding process to avoid issues involving ownership that may arise in the absence of trademark protection. The Wemby cases also show an increasing receptiveness on the part of the USPTO to protect the name, image, and likeness (“NIL”) of individuals that have gained notoriety even in the absence of a trademark registration. It also highlights the need to avoid branding that might be associated with well-known individuals and businesses.
Is your brand protected? Concerned about potential challenges around a brand you hope to launch? The Wemby example also shows why timing is important – contact us to speak with an attorney about your IP.
