Justify (Photo by Alex Evers/Eclipse Sportswire/Getty Images)
I have been privileged to attend some great sporting events in my lifetime. The Yankees clincher against the Braves in the 1996 World Series and the Eagles Championship Game win over the Vikings earlier this year are at the top of the list. For some, attending this weekend’s Triple Crown-capping Belmont Stakes may have been just as memorable. There is something about seeing history that lends the feeling that we are somehow part of that history. A taste of the immortal, as it where.
Since I am not a huge horse racing fan, it is a bit surprising that my attendance at the 1994 running of Monmouth Park’s Haskell Invitational is also high up on my personal list of most memorable live sporting events. I had just graduated high school, and my friends and I would make the short trip over to the track on occasion, to get some ice cream and watch a couple of races. As with every summer on the Jersey Shore, the highlight of the season was the running of the Haskell — the race with the richest purse, best attendance, and best field of thoroughbreds and jockeys competing.
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Attending that year’s running was a no-brainer, and I remember going to the track with high expectations. The clear favorite (at something like 9-1 odds) was a gray stallion named Holy Bull, a generational talent who passed away just over a year ago at the age of 26. Despite a disappointing (and controversial due to rumors he had been drugged) finish in the Kentucky Derby — which led to his not competing in any of the other two Triple Crown races — Holy Bull came into the Haskell as the consensus best 3-year-old horse in the country. I still remember seeing him for the first time in the paddock that day, a magnificent creature who made the other horses competing look slight in comparison.
From the starting gun, it was clear that Holy Bull was far superior to the competition, as he conquered them with little apparent effort. Even though he won the race from an early lead, it was clear that he was not running at his top speed. The experience was like watching a Indy Car driver win a race while driving in a lower gear than everyone else. There was no doubt Holy Bull had more to give — but nothing more was necessary, even though his competition was as pedigreed as it came. I remember leaving the track that day feeling privileged to have seen greatness, with the same awe that I have felt while watching human athletes make the extraordinary look routine. Capping things off was the mystique of his name — Holy Bull — with its evocations of transcendent power coupled with grace.
There is no doubt that champion racehorses, like Holy Bull and new Triple Crown-winner Justify, are worth extraordinary amounts of money. Race purses are rich, but the real money making potential for champions is at stud. Holy Bull himself generated over $20mm in stud fees over his “career”; Justify is worth even more, with a guaranteed deal for $75mm being reported. We can be sure that his owners will keep him busy in an effort to recoup their cash outlay for his stud rights.
Stud fees aside, how much of a champion racehorses’ value is actually derived from their brand name? On the one hand, there is no doubt that racehorse names — besides for having some byzantine naming conventions — can quickly develop secondary meaning, and thus strong trademark rights, in a very short period of time. Consider Justify, who in the space of a few months has become “famous” with a line of merchandise already in place. Or Holy Bull, who now has a valuable stakes race named after him.
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Furthermore, champion racehorse names have staying power, with the greats like Man o’ War, Secretariat, and others immortalized in the mind of public — over generations and long after they have passed on physically. On the other hand, it is unclear just how big the merchandise market is for racehorse associated memorabilia, suggesting that the true value of a champion racehorse is really tied up in its ability to win race purses and generate stud fees. At the same time, there are reports of enterprising owners seeking trademark protection on merchandise associated with a racehorse’s name. Unsurprisingly — especially in light of the recently announced merchandise deal — there have already been trademark filings around Justify.
Ultimately, as an IP lawyer, it is interesting to consider how quickly trademarks can become famous in certain industries like sports. It is also important to consider whether or not a particular mark will likely remain famous, or whether it represents a short-lived slice of public attention. In either case, however, pursuing trademark protection is likely a smart move, especially considering the relatively low cost of filing. Whether or not the mark ever generates real commercial value is something that can be determined over time. For an instant legend like Justify, or an all-time great like Holy Bull, we can be assured that their names will live on — long after the last merchandising dollar or stud fee is teased out of their legacy. Immortality is invaluable, as the running brands that are champion racehorses have shown us.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.