USPTO Releases Additional NIL Trademark Resources for Student-Athletes and Brand Owners

Over the past five years, name, image and likeness (NIL) rights have become increasingly important for student-athletes, entertainers, influencers, entrepreneurs and other public-facing individuals whose names, voices and likenesses are used to promote the brands, products and services of others. With artificial intelligence (AI) beginning to reshape how content is created and distributed, those rights face new and evolving challenges, making proactive brand protection more critical than ever. Against this rapidly evolving landscape, the U.S. Patent and Trademark Office (USPTO) has built an NIL resource page to educate the public and provide practical guidance on securing federal trademark protection for NIL rights.

NIL Resources

As the USPTO explains, NIL includes personal identifiers such as an individual's name or nickname, image in photos and videos, and/or voice, catchphrase or signature move. Where an individual uses NIL to identify the source of goods or services – including endorsement services or personal appearances – federal trademark or service mark registration may further help protect the brand nationwide, supplementing any existing common-law rights.

Notably, the USPTO's NIL resource page distinguishes NIL rights from trademark rights and explains the added benefits of federal registration. As a general matter, NIL rights are protected through state law, limited federal laws, organizational policies and contracts. Federally registered trademarks or service marks, on the other hand, are protected under federal law nationwide. Accordingly, federal trademark or service mark registration offers a powerful complement to existing NIL protections, enabling brand owners to thwart copycats, strengthen sponsorship and licensing deals, pursue enforcement in federal court and enhance the commercial value of their brand.

The NIL resource page identifies types of NIL that may be considered for registration when used as trademarks or service marks, including a legal name, nickname, voice, catchphrase, an image or other source-identifying personal identifier. As an illustration, the USPTO highlights a handful of celebrities who recognized their NIL as functioning trademarks or service marks and took the proactive step of federally registering them for nationwide protection.

The USPTO continues to supplement the resource page with short informational videos for student-athletes and parents, USPTO Hour webinars on NIL and practical links for users who want to identify intellectual property, learn trademark basics, or understand the application and maintenance process. The USPTO also emphasizes the importance of seeking a U.S.-licensed trademark attorney who can provide legal advice regarding the use of a trademark or service mark, file an application and assist in optimizing the likelihood of success in securing registration, because not all applications ultimately proceed to registration. Indeed, retaining an experienced U.S.-licensed trademark attorney not associated with the USPTO can prove invaluable in navigating the process and avoiding potential pitfalls.

Takeaways

The NIL marketplace continues to grow, and AI is only just beginning to blur the line between authentic and fabricated identity. Digital replicas, voice cloning and other unauthorized uses of an individual's NIL can erode control over a brand almost overnight, making proactive protection no longer optional but essential. Trademark registration is not a wholesale substitute for NIL rights, contracts or other available protections, but it provides a powerful layer of nationwide protection for NIL or other personal identifiers that function as a source identifier for goods or services. For student-athletes, entertainers, influencers, entrepreneurs and other brand owners, the message is clear: Early trademark planning is not an afterthought; it is becoming a cornerstone of any serious brand-protection strategy.

For more information about NIL trademark strategy or federal trademark registration, please contact the authors or other members of Holland & Knight's Trademark Protection and Prosecution Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.