“Cold Palmer”: is the conversation about image rights about to heat up?

In June 2023, I wrote about the lack of clear legal protection for individual image rights in the UK, highlighting the resulting licensing and ownership challenges (see here). Although the legal landscape remains unchanged, a recent non-traditional trade mark application by Premier League footballer Cole Palmer for his "shivering" goal celebration could ignite a discussion about the need for stronger image rights legislation.

Current legal position

Unlike other jurisdictions, English law currently lacks specific legislation to protect an individual's image rights. Individuals must resort to alternative legal avenues, with trade mark registration or the tort of passing off being common approaches for high-profile athletes (see a summary in my previous article).

The "Cold Palmer" celebration

Since December 2023, Cole Palmer has consistently celebrated his goals with a unique "shivering" motion, earning him the nickname "Cold Palmer". This celebration was reportedly used first by his former teammate, Morgan Rogers and in the states, NBA star Trae Young, nicknamed “Ice Trae” has been performing a similar celebration for years. Fortunately however for Palmer and unlike copyright, trade mark ownership doesn't require the applicant to be the original creator of the idea.

The trade mark application

Late last year, Palmer (through Palmer Management Limited) filed trade mark applications for five different marks across 16 classes at the UK Intellectual Property Office (UKIPO). The classes range from traditional categories such as clothing and advertising to more unusual ones like after-shave, birthday cards, and even drones.

The most intriguing application is for a "motion mark", seeking to protect Palmer’s celebration. Due to the requirement for marks to be capable of graphic representation, the application included a video of Palmer performing his now iconic celebration. Currently, it is under examination by the UKIPO and if approved, third parties will then have the opportunity to oppose the application. Perhaps some will view this as an “intellectual property grab” by Palmer and another notch in the over-commercialisation of professional sport. Others (such as Trae Young) could feel the celebration is not a right Palmer should be able to monopolise. 

Commercial incentives

High-profile athletes frequently trade mark distinctive celebrations to protect their brand value. Iconic examples include Usain Bolt's lightning bolt pose and Gareth Bale's previously registered "Eleven of Hearts" celebration (registered as a figurative mark). While motion marks are less common, they are not entirely unprecedented. For instance, Asda successfully registered its iconic back pocket tap as a gesture mark.

A successful motion mark application would grant Palmer Management Limited exclusive rights to the "Cold Palmer" celebration, allowing it to grant a licence (for a fee) for commercial purposes, such as branded merchandise, TV appearances, and video games. It would not prevent other players from performing the celebration on the field, as this use would not typically be commercial.

However, the specific commercial value and practical enforceability of this motion mark right remains unclear, particularly in some of the broader class applications. For example, how would Palmer enforce his rights regarding the use of the "Cold Palmer" celebration in, say, a video game that doesn't directly feature him. 

Nonetheless, the application demonstrates the growing trend of athletes seeking to capitalise on their image rights, mirroring the success of individuals like David Beckham, who recently reportedly earned £28 million in dividends through brand deals from his company DRJB Holdings. 

A new era of image rights protection?

This trade mark application, regardless of its outcome, underscores the evolving relationship between commercialising intellectual property and professional sports and Palmer’s proactive approach is an example of the increasing commercial importance of image rights to athletes. This is despite the lack of explicit legal protection for image rights in English law.

Palmer could pave the way for other athletes and celebrities to file non-traditional motion marks for their distinctive gestures and celebrations. This raises crucial questions about the suitability of trade mark law for protecting image rights.

Perhaps this application will spur a much-needed conversation about the need for specific legislation to protect individual image rights in the UK, preventing unauthorised use of their likeness by third parties.

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Bristows has significant experience in protecting brands and copyright, registering, managing and enforcing trade marks, commercialising intellectual property through licence agreements and sponsorships. If you would like to find out more, please contact us.