The Fowlkes Firm
Entertainment and Business Law Firm



Trust The Trademark?

Trust the Trademark.jpg

September 26, 2018, the Philadelphia Sixers filed a trademark application for the phrase “Trust the Process,” the U.S. Patent and Trademark Office website shows. This covers approximately a dozens uses of the phrase including television shows, basketball camps, mascot appearances, video games, and coloring books. According to the USPTO, there have been 10 applications filed for “Trust the Process” or something similar to the phrase, before the Sixers submitted their application.  Sixers superstar center Joel Embiid also has trademarks filed for "The Process". Earlier this year, the Buffalo Bills filed a trademark for “Respect The Process,” a clear but not so-subtle variation on the term. 

History Behind the Sixers and It’s Players Use of Trust The Process
On the day Sam Hinkie was hired and introduced, he talked about a “process”, which seems to be the origin of any talk relating to the word inside the Philadelphia organization.

Hinkie (May 14, 2013): "We talk a lot about process—not outcome—and trying to consistently take all the best information you can and consistently make good decisions. Sometimes they work and sometimes they don't, but you reevaluate them all." 

Joel Embiid first used this mark on Twitter, November 19th 2014. The Sixers tweeted “The Process, Embraced: Thursday's Draft Party is officially sold out”, June 22nd, 2015.

An article about former Sixers GM Sam Hinkie's ambitious and controversial rebuild  dated January 26th 2015, by ESPN's Pablo Torres featured a quote from then Sixers guard Tony Wroten who used the exact phrase.

Radio Personality and Sports Talkers Spike Eskin and Michael Levin, were also flagbearers for the phrase. In the Greater Philadelphia area where their names ring bells, they emphatically and undeniably supported and used the phrase “Trust The Process” even with apparel and on their podcast Rights To Ricky Sanchez

Since, “Trust the Process” has become a phrase synonymous with the Sixers organization and the city of Philadelphia itself. The phrase has been used as a slogan and hashtag for the Sixers organization by Sixers fans and players alike.

Evaluating The Case for Federal Trademark Protection

For regular phrases such as “Trust The Process” to acquire federal trademark protection, the person or company seeking the trademark must demonstrate that the phrase has acquired a distinctive secondary meaning apart from its original meaning.

That secondary meaning must be one that identifies the phrase with a certain and particular good or service. In regards to this particular trademark application, the Sixers wants to trademark “Trust The Process” for use with:

“Entertainment and educational services in the nature of ongoing television and radio programs in the field of basketball and rendering live basketball games and basketball exhibitions; the production and distribution of radio and television shows featuring basketball games, basketball events and programs in the field of basketball; conducting and arranging basketball clinics and camps, coaches clinics and camps, dance team clinics and camps and basketball games; entertainment services in the nature of personal appearances by a costumed mascot or dance team at basketball games and exhibitions, clinics, camps, promotions, and other basketball-related events, special events and parties; fan club services; entertainment services, namely, providing a website featuring non-downloadable multimedia material in the nature of television highlights, interactive television highlights, video recordings, video stream recordings, interactive video highlight selections, radio programs, radio highlights, and audio recordings in the field of basketball; providing news and information in the nature of statistics and trivia in the field of basketball; on-line non-downloadable games, namely, computer games, video games, interactive video games, and trivia games; entertainment services in the nature of fantasy basketball leagues; electronic publishing services, namely, publication of magazines, guides, newsletters, coloring books, and game schedules of others on-line through the Internet, all in the field of basketball; providing an online computer database in the field of basketball.”

The Sixers will have to argue that the public has come to identify the phrase “Trust The Process” with the organization and it’s efforts in marketing and promoting the team, as evidenced by the language used in their trademark application above. The Sixers organization has turned the phrase into it’s identity over the past 4 years thus most consumers of sports nationally and locally associate the phrase “Trust The Process” with the Sixers, making a nexus fairly easy to establish.

While the Sixers clearly have a great shot of gaining Federal Trademark Protection for the phrase, this does not mean that no one else can use the word, phrase, or symbol in connection with any and all goods and services. It simply means that others in the same relative space can’t use a similar trademark with similar goods or services. Note: Trademark infringement occurs when someone else’s use of a trademark would likely cause confusion about the source of goods or services.

This means that although the Sixers could not create a monopoly on the phrase, it could very well stop other sports teams and entertainment organizations from profiting off of the phrase or something similar. A prime example is the NFL team, Buffalo Bills, who filed for a trademark for RESPECT THE PROCESS on May 23. In the United States, it is not registration, but actual use of a designation as a mark that creates rights and priority over others. Thus, the rule is that ownership of a mark goes to the first-to-use, not the first-to-file.

Although the Bills filed first, the Sixers clearly were using a similar mark in commerce before the Buffalo Bills thus the Sixers can probably, successfully contest this Trademark application. If the Sixers are granted a Trademark for the phrase, federal registration serves as direct evidence of the validity and exclusive ownership of the mark for the goods and services listed in the registration, which can help not only in court proceedings but perhaps more importantly in quickly convincing others to cease using a mark without the need to go to court. While the nation is already on notice for “Trusting the Process”, federal trademark protection will put other companies and organizations on legal notice.

Naturally, maybe the only person who can block the Sixers from Federal Trademark Protection for “Trust The Process”, is “The Process” himself, defensive player of the year candidate Joel Embiid.

Karl Fowlkes