Marcus Lemonis Gets The Last Laugh As Joel Embiid Loses Trademark Battle To Register 'Trust The Process'

Many years ago, the Philadelphia 76ers decided to trust the process. Since then, the organization has gone from a team that logged only 10 wins during the 2015-16 NBA regular season to finishing first in the Eastern Conference this season, with a 2-0 lead over the Washington Wizards in round 1 of the NBA Playoffs. The phrase, "Trust The Process," has been commonly uttered by those in and around the organization as the team has gone from the laughingstock of the league to a leader, and Joel Embiid, in particular, has taken an interest in the words, going as far as calling himself "The Process."

In fact, on November 21, 2018, Embiid filed an application with the U.S. Patent and Trademark Office (USPTO) to register the trademark, "Trust The Process," for use in connection with the sale of shoes. Embiid originally filed the application on an intent-to-use basis, identifying to the USPTO that he had a bona fide intent to sell shoes in connection with a "Trust The Process" brand in the future.

Embiid was blocked by a prior registration. The existing registration for "Trust The Process," an identical phrase, is owned by Marcus Lemonis LLC for use with the sale of clothing, namely, shirts and sweatshirts. Lemonis, who is well known for his TV show The Profit on CNBC, has owned the registration since April 2016, well before Embiid filed his application to register the same mark for use within the same class of goods.

Interestingly, Lemonis tweeted me about this very issue in 2019.

On January 31, 2020, the examining attorney at the USPTO who was assigned to Embiid's application issued a Final Office Action, maintaining that Embiid's applied-for mark is so similar to Lemonis' mark that it is likely consumers would be confused, mistaken, or deceived as to the commercial source of the goods of the parties. Not one to easily back down from a challenge, Embiid filed an appeal to be heard by the Trademark Trial and Appeal Board (TTAB). The appeal was filed on July 31, 2020, and on May 26, 2021, a final decision was provided in the case.

The TTAB has affirmed the examining attorney's decision to block Embiid's application from being registered. Here is an interesting portion from the ruling on appeal:

There is no dispute that THE PROCESS identifies Applicant, but Applicant seeks to register a different nickname, TRUST THE PROCESS, and we find, based on the record as a whole, that Applicant failed to show that he is known to potential purchasers of shoes in the general public (or even to basketball fans) as “Trust the Process.”

While Embiid may be undefeated thus far in this year's NBA Playoffs, he suffered a final loss on his effort to register "Trust The Process" in connection with the sale of shoes. Embiid should be careful in using the phrase with any shoes and apparel, as I am sure Lemonis will be watching closely following this decision.