The 76ers recently had a big win at Oracle Arena, which led me to take a look at a trademark application by Joel Embiid for “The Process.” After reviewing the trademark, I have a prediction to make.
This trademark application for THE PROCESS was filed by Joel Embiid back in October 2016 and it has been pending since then. The application is pending because Joel had to show that he was actually selling the items that he had claimed in the trademark application in order for the government to grant the registration. The day after Christmas, his attorneys filed something called a Statement of Use. A Statement of Use essentially states that they are now selling those products and can register the trademark.
In this case, I see a big problem. The specimen that they submitted for the registration is a photograph of a t-shirt that says “The Process” on it, which happens to be located on the Under Armour website. Now, what’s the problem with this? In order to have commercial use of the trademark, “The Process” needed to appear on a hang tag, a price tag, or a neck tag for the shirt. It must be used in a branded fashion. In this image, it is considered an “ornamental use” and should never be accepted as a “trademark use.”
In this case Embiid could have also tried to put the brand in the internet listing. However, instead of calling it “The Process” shirt, on the Under Armor website the t-shirt is labeled as the “UA Embiid The Process.” So, this now becomes the full trademark and the trademark being used here is not just “The Process.”
So what is the significance of this? In my view, the USPTO should refuse that specimen and it is a non-fixable error. In other words, unless Under Armour has been selling clothing that has been using the tag prior to the date this statement of use was filed, they cannot go back and fix it. So, the application should be denied. End of story.