Precedential No. 4: TTAB Affirms Refusal of WEMBY for Athletic Apparel - False Connection with and Lack of Consent from the real Wemby

The Board upheld a refusal to register the proposed mark WEMBY for "athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms," finding that the mark falsely suggests a connection with NBA star Victor Wembanyama under Section 2(a), and that applicant lacked a consent from Mr. Wembanyama under Section 2(c). Applicant mainly argued that, based on the constructive first use date of its application (January 12, 2023), it should be deemed the prior user of WEMBY, since Wembanyama was little known before being drafted by the San Antonio Spurs in the summer of 2023. In re Wemby Corporation, Serial No. 97752244 (June 24, 2026) [not precedential] (Opinion by Judge Thomas. W. Wellington).

Section 2(a) - False Connection: Section 2(a), in pertinent part, bars registration of a mark that "consists of or comprises . . . matter which may . . . falsely suggest a connection with persons . . . ." To establish that a proposed mark falsely suggests a connection with a person or institution, it must be shown that:

• (1) The mark is the same as, or a close approximation of, the name or identity previously used by another person or institution; 
• (2) The mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution; 
• (3) The person or institution named by the mark is not connected with the activities performed by the applicant under the mark; and 
• (4) The fame or reputation of the person or institution is such that, when the mark is used with the applicant’s goods or services, a connection with the person or institution would be presumed.

In re Foster, 136 F.4th 1090, 1094 (Fed. Cir. 2025) [Emphasis added].

There was no dispute as to the third element of the test: Victor Wembanyama is not connected with the applicant. As to the first element, the evidence established that "Wemby" is Victor Wembanyama's nickname. The Board found that "the record is clear that WEMBY was previously used to identify Mr. Wembanyama," including articles reflecting "the public attention accorded to Mr. Wembanyama at that time and indicate an excitement for the upcoming 2023 NBA season and potential sensation he would make as a top draft pick."

As to the second element, the Board considered all the evidence submitted "during the examination process," as approved by the CAFC in Foster, and found that WEMBY "is a well-recognized nickname that points uniquely and unmistakably to Mr. Wembanyama."

As to the fourth element, the Board concluded that "[g]iven Mr. Wembanyama’s demonstrated fame as an NBA player and his inherent and demonstrated relationship with athletic apparel like that described in the application, . . . consumers would presume a connection with Mr. Wembanyama upon encountering use of WEMBY on these goods."

And so, the Board found that applicant’s mark WEMBY falsely suggests a connection with Mr. Wembanyama, as prohibited under Section 2(a) of the Act.

Section 2(c) Consent Section 2(c) of the Act prohibits registration of a mark that "[c]onsists of or comprises a name … identifying a particular living individual except by his written consent . . . ." “[T]he Board has set forth two ways to show that a ‘name’ identifies a particular living individual for purposes of Section 2(c): 1) if the person is so well known that the public would reasonably assume the connection, or 2) if the person is publicly connected with the business in which the mark is being used." The Board found that both elements of the test were met here.

First, "Mr. Wembanyama’s fame as the 2023 NBA first draft pick, and reference to him as 'Wemby' is such that the public would reasonably assume a connection between Applicant’s WEMBY mark and Mr. Wembanyama." Second, "he has also been publicly associated with goods identified in the application, including his debut of a new Nike shoe and the sale of sports apparel bearing his name." Moreover, it is common knowledge that the NBA is well-known for marketing athletic apparel. "Thus, as an NBA basketball player, Mr. Wembanyama is “publicly connected” with the business of Applicant’s identified athletic apparel and footwear."

And so, the Board found that applicant’s proposed mark, WEMBY, identifies a particular living individual, Victor Wembanyama, whose written consent is not of record. Therefore, the Board affirmed the Section 2(c) refusal.

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TTABlogger comment: The discussion about prior use is of questionable relevance. The TTAB in its (non-precedential) Foster decision stated: "[P]rior use in the context of a false suggestion of a connection is not a question of priority as contemplated in a likelihood of confusion context. Indeed, prior use 'may be found when one’s right to control the use of its identity is violated, even if the name claimed to be appropriated was never commercially exploited as a trademark or in a manner analogous to trademark use.'" The CAFC in Foster did not consider this point but instead ruled on whether evidence after the filing of the application could be considered for purposes of the Section 2(a) refusal. The CAFC said yes.

The Board here found it unnecessary to consider the issue of intent, but for this observer it is difficult to imagine that the applicant came up with his mark out of the blue.

Text Copyright John L. Welch 2026.