A famous athlete’s nickname can support both Section 2(a) and 2(c) refusals

A nickname can do double work against an application. In this precedential decision, the Board held that WEMBY for athletic apparel both falsely suggests a connection with NBA player Victor Wembanyama under Section 2(a) and identifies him as a particular living individual under Section 2(c), where the record showed that WEMBY was his recognized nickname and the goods were the kind of products consumers would expect him to endorse or be associated with. The Board also relied on the Federal Circuit’s recent decision in In re Foster to confirm that, in an ex parte false-suggestion case, the record is assessed as of the time of examination, so post-filing evidence can be considered. (slip op. at 6, 12–14, 18–21)

That rule has limits. The opinion does not say every shortened name or nickname will support both refusals. The record here showed several things together: media use of WEMBY as Wembanyama’s nickname from multiple outlets, evidence that the nickname pointed uniquely and unmistakably to him, and a tight fit between his fame as an NBA player and the identified goods, which included shoes, uniforms, and other athletic apparel. (slip op. at 9–18) The Board also stressed that there was no dispute that Wembanyama was not connected with the applicant. (slip op. at 7, 18)

For practitioners, the practical point is that a filing-date argument will not do much work by itself in a Section 2(a) appeal after Foster. The Board treated later-developed evidence as probative of whether the mark falsely suggested a connection at the time of examination, and it found enough pre-filing evidence here in any event. (slip op. at 11–14, 21 n.40) The opinion also separates the two doctrines in a useful way: Section 2(c) asked whether the public would recognize the mark as identifying a particular living individual, and the Board said that inquiry has no filing-date timing component. (slip op. at 19–21 & n.40)

For brand owners, the decision is a reminder that a coined-looking term is not necessarily safe if the market already treats it as someone’s nickname. That is especially true when the goods are the sort of merchandise consumers connect with athletes, celebrities, or endorsements. Opinion: once the nickname has become part of public coverage, the record problem is hard to solve.

The case itself arose from Wemby Corporation’s application to register WEMBY in standard characters for “athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, athletic uniforms” in Class 25. (slip op. at 1) The application was filed on January 12, 2023 under Section 1(b). Applicant later filed, and then withdrew, an amendment to allege use. (slip op. at 1 n.1) The examining attorney refused registration under Section 2(a), for false suggestion of a connection with Victor Wembanyama, and under Section 2(c), because the mark identified him without written consent. (slip op. at 2–3)

Before reaching the merits, the Board sustained part of Applicant’s evidentiary objection. It refused to consider screenshots attached to the October 24, 2023 and June 12, 2024 Office Actions because they lacked URLs and access dates, as TBMP § 1208.03 requires. (slip op. at 3–5) But it did consider the materials attached to the July 10, 2025 Office Action, because that Office Action supplied the URLs and access dates, even though the Board noted that the better practice is to associate that information clearly with each screenshot. (slip op. at 5 & n.16)

On Section 2(a), the Board applied the familiar four-part test and found the third element undisputed because Wembanyama was not connected with Applicant or its goods. (slip op. at 6–7) On the first element, the Board held that WEMBY was a nickname previously used to identify Wembanyama. (slip op. at 7, 13–14) It cited evidence from Sports Illustrated, The Athletic, The Ringer, and CBS Sports using Wemby to refer to him, and it said those articles reflected public attention around his expected entry into the NBA and the 2023 draft. (slip op. at 9–14) The Board said it reached that finding without relying on the social-media evidence, though it treated the Instagram and X screenshots as probative that he had adopted WEMBY as a handle by the dates captured. (slip op. at 8, 14 n.33)

The Board rejected Applicant’s argument that its January 12, 2023 constructive-use date defeated the refusal because significant US use of WEMBY supposedly came later. (slip op. at 11–14) Relying on Foster, the Board said that Section 2(a) in an ex parte appeal looks to whether the mark falsely suggests a connection as of the time of examination, so the inquiry can include evidence that comes into existence during examination. (slip op. at 13–14) It then found the circumstances similar to Foster and concluded that WEMBY had been previously used to identify Wembanyama. (slip op. at 13–14)

On the second element, the Board found WEMBY pointed uniquely and unmistakably to Wembanyama. (slip op. at 14–16) It again relied on the full record, including later notable-source evidence such as a USA Today Sports HoopsHype article and a Bleacher Report item using Wemby to refer to him. (slip op. at 14–16) On the fourth element, the Board found that Wembanyama’s fame and the nature of the goods made a connection likely. (slip op. at 16–18) Because he was a famous NBA player and the goods included athletic apparel such as shoes and uniforms, the Board found an “obvious and inherent connection” between the person and the goods. (slip op. at 16) It pointed to evidence about his wearing a new Nike shoe and the sale of jerseys bearing his name. (slip op. at 16–18) That was enough, in the Board’s view, to make consumers presume a connection if WEMBY appeared on the identified goods. (slip op. at 18)

The Board then turned to Section 2(c). It recited that the statute absolutely bars registration of a mark that “[c]onsists of or comprises a name … identifying a particular living individual except by his written consent,” and that “name” for this purpose can include a nickname. (slip op. at 19) It also repeated the Board’s two ways of showing that a name identifies a particular living individual: either the person is so well known that the public would reasonably assume a connection, or the person is publicly connected with the business in which the mark is used. (slip op. at 19)

Using the same record, the Board found both routes satisfied. First, it found Wembanyama’s fame as the 2023 NBA first draft pick, together with public references to him as Wemby, meant consumers would reasonably assume a connection between WEMBY and him. (slip op. at 20) Second, it found he was publicly associated with the identified goods through evidence about his debut of a new Nike shoe and the sale of sports apparel bearing his name. (slip op. at 20–21) The Board added that it is common knowledge that the NBA is a professional sports league and business well known for marketing athletic apparel, including shoe endorsements, and therefore held that Wembanyama, as an NBA player, was publicly connected with the business of the identified goods. (slip op. at 20–21) Because no written consent was of record, the Section 2(c) refusal was affirmed as well. (slip op. at 21)

The result was a complete affirmance: registration of WEMBY was refused under both Section 2(a) and Section 2(c). (slip op. at 21) The larger lesson is not just that athlete nicknames can trigger these refusals, but that a strong enough record can support both at once, even where part of the proof develops after filing.

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