Fighting for rights to Tebowing
April 7, 2012 by JIM BAUMBACH / jim.baumbach@newsday.com
Tim Tebow is competing with two of his fans for the trademark rights to the term "Tebowing," the pop-culture phenomenon in which people take photos of themselves mimicking the quarterback's on-field praying stance and post them on the Internet.
One of the others who also have filed paperwork with the United States Patent and Trademark Office for the rights to "Tebowing" is Jared Kleinstein, a 24-year-old Broncos fan from Manhattan who said he came up with the phrase and runs the popular photo-based website tebowing.com.
Tebow's Beverly Hills-based attorney, Anthony Keats, responded to Kleinstein's application with a letter of protest, arguing that awarding the Tebowing trademark to someone other than the quarterback "is likely to cause some confusion" that he is connected to products being sold.
The trademark office's examining attorney assigned to the case, W. Wendy Jun, followed by officially declining Kleinstein's request last month on the basis of a "false connection" to a living individual. She declined to comment for this story.
The other person who applied for the trademark is Jason Vollmer of Jacksonville Beach, Fla., who sells Tebowing T-shirts and stickers on his website tebowinggear.com. His application, filed Dec. 6, also has been denied because of a "false connection to a living individual" and he has six months to respond. Vollmer did not return a call seeking comment.
But the trademark process isn't over yet.
Kleinstein has until Aug. 22 to respond to the examining attorney's letter; if he does nothing, he is considered to have abandoned his trademark request. Tebow's application is not expected to move forward until Kleinstein's application, which was filed first, is finished.
Keats, Tebow's lawyer, did not respond to messages seeking comment.
Kleinstein declined to say how he plans to respond to the examining attorney's letter, calling it "an ongoing process." But he said he's enjoyed running the site -- and seeing the sudden growth of the "Tebowing" phenomenon -- far too much to lose sleep over the trademark legalese.
A marketing and entrepreneurship major at Washington University, Kleinstein said he coined the "Tebowing" phrase last October after watching Tebow celebrate a Broncos victory by kneeling solemnly in prayer in the end zone while his teammates around him were jumping, hugging and slapping hands.
He said he posted a photo of himself and friends mimicking Tebow's praying pose on Facebook that night, and the positive response spurred him to start the tebowing.com website.
Before long, "Tebowing" was all the rage, with even non-sports folks such as Lady Gaga and Republican presidential candidate Rick Santorum posing for pictures in such a pose.
The rapid rise in popularity has shocked many, including the quarterback himself.
"I'm pretty sure I'm not the first athlete that's gotten on a knee and prayed," Tebow said last week. "But somehow it's known as Tebowing and I'm not sure why . . . It's not all a bad thing. If somehow people are talking about prayer, or talking about my faith, I think that's pretty cool."
According to public records, Kleinstein applied for the trademark to use "Tebowing" on T-shirts and hats sold on his website on Oct. 27, four days (and many hundreds of thousands of page views) after he started the tebowing.com website.
Tebow's application, filed by Keats, wasn't filed for nearly another two months. But intellectual property law experts said the fact that Kleinstein was first in line or is responsible for the name means little as far as the U.S. Patent and Trademark Office is concerned.
"Ultimately, while he may have come up with the name, he's still playing off the name and the fame of Tim Tebow," said Keith Weltsch, a trademark attorney with the Garden City firm of Scully, Scott, Murphy and Presser. "He's going to have a difficult time trying to establish there is not a false association."
Kleinstein seems to understand that. He said the site has been successful -- he declined to say how much money he's made from the sale of T-shirts -- but not enough for him to quit his day job at an online real estate company.
"If you told me tomorrow I got rejected on the trademark and would never have control over the merchandise . . . bummer," he said. "But I've been enjoying myself and I've been having fun with this process . . . I wasn't in this in the first place to make money."