NIL: Why student-athletes need to protect their intellectual property

During summer 2021, when the NCAA was deciding whether to change its policy and allow college athletes to license out their name, image, and license (NIL), Graham Mertz, who had just finished his freshman season as starting quarterback for the University of Wisconsin, was feeling confident.

The new NIL guidelines, which were approved July 1st that year, give student-athletes the opportunity to profit from their fame, and Mertz's strong support system—with his father and family at the helm—meant he was ready to take full advantage.

Team Mertz's game plan: Be prepared

In anticipation of the decision, Mertz's attorney, Michael A. Cohen, completed all the necessary legal work, trademarking Mertz's new logo to be used on "wearable garments and clothing, namely shirts, sports caps, and hats."

In June of that year, Mertz shared his trademarked personal logo on his social media platforms but was able to remain focused on his primary goal—playing football.

“My biggest thing was I wanted to have all the [NIL] things in the background set up ahead of time," he told Alex Strouf of ESPN Madison.

“Where we're going to go with our website and stuff like that. My dad and my family have done a great job of taking that off my plate, so I can focus on what's going on around here. It's great to make some money off of it, but I can't let it be a distraction at all."

LegalZoom offers intellectual property and trademark services that allow student-athletes to focus on the things that matter on the field and in the classroom.

A successful NI package lauunch

When the NIL era began after the approval, Mertz launched an e-commerce platform featuring more than 100 styles of tees, sweatshirts, and hats. The website also includes a newsletter sign-up that lets fans opt-in to updates on new arrivals and sales.

Mertz led the way with team-focused partnerships. He signed on with charity-focused restaurant chain Mission BBQ  in an endorsement that fit well with his personal brand of supporting servicemen and women. He also made it about his teammates, sharing on Twitter that Mission would be “the official BBQ of our entire O-Line room here at Wisconsin! Gotta keep the big boys fed!!!"

And on July 28, 2021, he was announced as one of three college quarterbacks selected for an exclusive deal with Panini America to sell signed memorabilia.

In the months after the initial NIL rush, Mertz continued building his brand by signing on to partnerships with Raising Cane's Chicken Fingers, Red Bull, Smile Direct Club, and Gone Rogue snacks.

He says he was able to successfully launch his NIL endeavors without sacrificing what matters most to him because of his informed support system.

“It's knowing that the work always comes first. For us, that's the work with academics, here [on the field], and your family. Own that before you add another thing to your plate. You can't be doing a balancing act doing a bunch of things you're not ready for."

The NIL game plan

For student-athletes beginning the NIL journey, whether before the start of their NCAA career or in the middle of it, the process can seem overwhelming. LegalZoom's services can help protect the student-athlete legally and financially.

There are several pitfalls that can both cost you endorsements and even playing time if you are found in violation of NCAA rules, regardless of whether or not you understand them. Here are some ways to ensure a smooth process.

Protect your brand

College athletes and their support people will need to understand some basic legal concepts, including how to protect their intellectual property (IP), such as trademarks and copyrights.

IP can be protected in several ways, but for most college athletes, the focus will be on trademarks—"any word, phrase, symbol, design, or a combination of these things that identifies your goods or services," according to the definition the United States Patent and Trademark Office (USPTO), the government agency that registers trademarks and patents, uses.

Begin the trademark process

Once you have chosen what you wish to trademark, you must make sure someone else hasn't already done so. The USPTO has a search service, the Trademark Electronic Search System.

Filing a trademark application requires several other considerations. LegalZoom can give student-athletes access to tools to determine how best to prepare a trademark application.

Use your trademark

In order to maintain ownership of the trademark, you must begin or continue to use their mark consistently. Otherwise, you might lose it.