Background
In January 2023, Wemby Corporation applied to register the standard-character mark WEMBY on the Principal Register for athletic apparel — shirts, pants, jackets, footwear, hats, caps, and athletic uniforms. The USPTO examining attorney refused registration on two grounds: first, that WEMBY falsely suggests a connection with Victor Wembanyama, the San Antonio Spurs NBA star universally known as “Wemby,” under Section 2(a) of the Lanham Act; and second, that the mark identifies a living individual without his written consent, as required by Section 2(c).
The applicant argued that when it filed on January 12, 2023, “Wemby” had not yet been widely adopted in the United States as Wembanyama’s nickname — Wembanyama was drafted first overall by the Spurs only in summer 2023, months after the filing date. Wemby Corporation contended that its earlier constructive use date should defeat the “previously used” element of the false suggestion test. After a Request for Reconsideration was denied, the applicant appealed to the full TTAB, which held an oral hearing on March 18, 2026.
The Court’s Holding
The TTAB affirmed both grounds for refusal. On the §2(a) false suggestion claim, the Board applied the Federal Circuit’s 2025 decision in In re Foster, 136 F.4th 1090 (Fed. Cir. 2025), which established that the false connection inquiry is assessed “as of the time of examination” — not merely the filing date. Post-filing evidence is therefore fair game. The Board found overwhelming proof that “Wemby” was Wembanyama’s well-recognized nickname: Sports Illustrated, The Athletic, The Ringer, and CBS Sports were all using “Wemby” to refer to the player, and Wembanyama himself used “wemby” as his Instagram handle (4.7 million followers) and his username on X.
Given Wembanyama’s fame as an NBA player and the inherent connection between professional basketball stars and athletic apparel — the very goods in the application — the Board held that consumers encountering WEMBY on shoes, jerseys, and uniforms would presume a connection with Wembanyama. The Board noted evidence of Wembanyama wearing an unreleased Nike shoe at Yankee Stadium and his officially-licensed Spurs jerseys “flying off the shelves.”
On the §2(c) claim, the Board held that WEMBY identifies Wembanyama as a living individual, and a mark comprising such a name cannot be registered without written consent. Citing Vidal v. Elster, 602 U.S. 286 (2024), the Board found both §2(c) tests satisfied: Wembanyama is so famous that the public would reasonably assume the connection, and he has been publicly associated with athletic apparel of exactly the type described in the application.
Key Takeaways
- A celebrity’s nickname — including an informal handle adopted on social media — can bar third-party trademark registration under §2(a) (false suggestion of connection) and §2(c) (living individual’s name without consent).
- Under In re Foster, the USPTO and TTAB may rely on evidence that post-dates an intent-to-use application’s filing date when evaluating a §2(a) false connection refusal. An early constructive use date does not insulate an applicant if the mark came to identify someone else during examination.
- Applicants seeking to register marks that resemble famous athletes’ nicknames on sports-related goods face a steep burden, especially where the athlete is already publicly associated with that product category through endorsements and licensed merchandise.
- The §2(c) bar covers nicknames and informal handles, not just legal names — consistent with Vidal v. Elster’s recognition that the provision broadly protects an individual’s reputation and identity.
Why It Matters
The Wemby decision illustrates how quickly an athlete’s nickname can crystallize as a protectable identity in the trademark system. A company that files an intent-to-use application for a term that looks like an invented word can find itself blocked years later when a famous athlete has adopted that very nickname as their public identity. The lesson for brand owners: trademark clearance must account not just for existing registrations, but for rising athletes and entertainers whose names might become synonymous with the applied-for mark during the often-lengthy examination process.
The decision also reinforces the post-Vidal v. Elster landscape, where §2(c) operates as a near-absolute bar to registering any name the public associates with a living person — even absent any intent by the applicant to trade on that person’s identity. For companies considering marks that echo celebrity nicknames, athlete monikers, or viral social media handles, early legal clearance and an eye toward evolving cultural significance are essential.