Transfer Portal King Eric Musselman May No Longer Legally Be Allowed to Say the Phrase

What impact will public filing have, if any, on how Arkansas can market its head coach?

FAYETTEVILLE, Ark. – There are a lot of fun nicknames for Arkansas head coach Eric Musselman, all of which are well earned. The Portal King. Importer in Chief. The Great Importer. Importimus Prime. 

OK. The last one is made up, but it has a nice ring to it, especially with a new Transformers movie on deck at the local theaters. The point is, the list goes on forever, but a new trademark filing by All Elite Wrestling, a professional wrestling upstart that began a few years ago to fill the void left by the demise of WCW many years ago, will have the legal experts at Arkansas and many other schools across the country checking into whether they can still promote their product using the words transfer portal. 

That's right. A wrestling company has filed to trademark the term transfer portal. Much like words like bubble wrap, jet ski and ping pong, the term transfer portal could become a phrase that is off the table and will require a more generic term as far as marketing purposes. 

Just as bubble wrap became packing material, jet skis became personal watercrafts, and ping pong became table tennis, someone may have to cook up a generic term for transfer portal. Perhaps they could generically call it the Redistribution of Athletic Talent, or RAT for short. Players no longer enter the transfer portal. Instead, they join the RAT race.

There's the potential for this trademark to not affect the world of college basketball. Trademarks are supposed to only apply to the industry for which they are marked. For instance, if someone wants to open a restaurant called The Transfer Portal, that's an entirely different industry, so it is supposed be protected from legal action. However, there's gray area as to whether college basketball and the world of AEW exist in the same industry. 

Both could technically be considered athletic performance for entertainment purposes. Unlike the WWE, which markets its product as "sports entertainment," meaning it leans more heavily on producers and script writers as the driving force behind its product, AEW goes hard on the idea that it is a world of professional wrestlers. There are no scripts in AEW. The wrestlers say whatever it is they wish to say and the athletic demonstration is the main focal point. While the outcomes are still predetermined, this distinction of selling athletic talent for entertainment purposes as opposed to something more along the lines of a scripted reality TV show could create problems in court if a school like Arkansas were to create transfer portal based marketing. 

What it all technically comes down to is whether the trademarks specifically list wrestling in every line. If any leave room for the trademark to be interpreted as athletic entertainment, then the lawyers at Arkansas will most likely sit down with the coaches, communications department and marketing department to outline how close they can walk up to the line. Rest assured that when it comes to legal situations, administrators will recommend staying far away from whatever line is established. 

There is a report by ewrestlingnews.com describing the legal language around the trademarks, that, if accurate, would be highly relieving to Arkansas and its legal team. Reports indicate the trademark filing reads as follows:

“Entertainment services in the nature of live wrestling performances; Entertainment services in the nature of production of wrestling programs and events; Entertainment services, namely, an ongoing multimedia program featuring wrestling distributed via various platforms across multiple forms of transmission media; Entertainment services, namely, production and distribution of ongoing television programs in the field of wrestling.

Conducting entertainment exhibitions in the nature of wresting exhibits and performances by professional wrestlers; Entertainment in the nature of wrestling contests; Entertainment services in the nature of live wrestling performances; Entertainment services in the nature of production of wrestling programs and wrestling multimedia entertainment event content; Entertainment services, namely, production and distribution of ongoing television programs in the field of wrestling.”

Every line includes the word wrestling. That means that if this is the exact wording of the trademark, then Arkansas should be in the clear. If it were to read "Entertainment services in the nature of live performances" or Entertainment services, namely, production and distribution of ongoing television programs in the field of athletic competition," then there would be an issue.

However, in the world of trademarks, ironically the NCAA itself has proven to be one of the greatest stretchers of trademark law application, which could potentially serve as precedent for applying the trademark to schools like Arkansas even though the  Razorbacks don't even have a wrestling team. 

This stems from the NCAA's overprotection of the terms "March Madness," "The Big Dance," "Elite 8," 'Final Four," and "Road to the Final Four." They tried to trademark "Sweet 16," but someone beat them to it. The NCAA is so insane about its college basketball trademarks that it even registered "Spring Madness" despite that term not being associated with the NCAA at all. 

And boy have they gone out of their way to enforce it. In 2017, the NCAA successfully sued an online betting company for running a promotion called "April Madness" that included a "Final 3." Apparently, no one is allowed to have madness in any month outside of the NCAA, and it doesn't matter how many options there are in your final. They own it, and in this case, cashed in for just shy of a quarter million dollars to pay their lawyers.

But that was a sports betting company. It can be argued that those are related industries. What about the world of cars? The NCAA has no direct correlation to the car industry. Surely there would be wiggle room there.

A car dealership that used the phrase "Markdown Madness." Sued. Settled out of court.
An automobile show that used the term "Street Madness." You know where this is going.
A "Final Friday" event promoting the sale of bathrobes and masquerade costumes. If anyone was going to submit an infringement claim on this one, it would be New Line Cinema which owns the rights to the Friday the 13th franchise and literally has a movie called "The Final Friday." But, no. It was the NCAA that went after this event 

Even the NCAA's own schools aren't able to escape the legal team at the NCAA offices despite being members. Remember the Big Ten using the phrase "The March is On"? The NCAA went after its own members, took the phrase as its own and trademarked it. Just one of a long list of reasons Power Five schools are considering abandoning the NCAA to do their own thing.

So, as you can see, the NCAA has opened up doors that could still put its schools and coaches at risk despite the word wrestling being in every line. Lawyers have seen what the NCAA has done and know the door swings both ways. A few would probably leap at the chance to punish NCAA member institutions for what's been done by the parent organization. 

So, before the marketing department has Musselman borrow Sam Pittman's throne and kingly accessories from a few years ago to put together a promotion of him as the Transfer Portal King, they might want to hold off. AEW owner Tony Khan, yes, of the Khan family that owns the NFL's Jacksonville Jaguars, might want to speak to them about those two little words. 

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