The Problematic Process of Trademarking Trends

//The Problematic Process of Trademarking Trends

The Problematic Process of Trademarking Trends

Trademarks are words, services, symbols or designs created to identify goods or services from one party to another.  They also seek to maintain the reputational value of a brand while helping to defend itself from counterfeiters or fraudsters. But thanks to the current ‘meme’ culture that has proliferated across the Internet, we are seeing a rise in opportunistic trademarking of the latest trending words or phrases.

Case in point: On May 28, 2016, a gorilla named Harambe was shot and killed at Cincinnati Zoo after it grabbed a three-year-old boy who had fallen into its enclosure. The story was picked up by news organisations all over the world, and the decision to kill Harambe quickly became a topic of fierce debate and controversy. It quickly snowballed out of control, with the gorilla’s name going viral across the Internet and provoking an influx of over-the-top tributes to Harambe.

The opportunity to try and capitalise upon this story did not go unnoticed by some. Just over a month after the story broke, an entrepreneur from Ohio filed an application to trademark the name Harambe in the hope of using the name on a range of merchandise, including t-shirts, hats and more.

A similar scenario took place earlier this year, when US President Donald Trump posted a late-night tweet with a typo that read ‘covfefe’. The word instantly became a huge meme, with people trying to decipher what it meant and interpreting it in their own ways. By lunchtime the next day, a trademark application for the phrase ‘Covfefe Coffee’ had already been filed, and two weeks later there had been 32 different applications including the word.

We can never be 100% certain of the intentions of parties filing applications as part of stories such as these — some might genuinely be looking to use the name for merchandising purposes, while others might perhaps look to simply ‘sit’ on the trademark — but one thing is clear: almost all attempts to register trending phrases and words such as these with the USPTO can be doomed to fail.

The reason for this is fairly simple but often overlooked by the opportunists looking to file their applications as quickly as possible. The website Above The Law writes: “…not only do trademarks distinguish the owner’s goods and services from those of another through use, but they must also act as a source identifier. These elements are essential not only to obtain federal registration status, but to maintain, protect and police such rights.” In other words, it’s all well and good if someone wants to emblazon a certain phrase on a t-shirt, but for it to be successfully trademarked that phrase has to be explicitly associated with the owner, and not a third party.

What’s more, a trademark will only be successfully registered if there is concrete evidence that the owner will be using the mark in commerce. Claiming your intent to use the mark on a range of merchandise is one thing, but providing strong examples of ‘actual use’ is something else altogether. Especially for those who might be looking to just ‘sit’ on the trademark, this is often where their registration attempts end.

All of this means that, in the cases of the above stories, the only person who technically could trademark the word covfefe is President Trump, and the only person who could trademark Harambe is, well, Harambe himself…or perhaps Cincinnati Zoo.

Of course, these are just two of the many issues that people can be faced with when trying to opportunistically trademark a trending word or phrase, and the overall trademark registration process can be tricky to navigate for even the most experienced of individuals. But when it comes to the latest trends and viral stories, it is rare that a trademark attempt will prove successful.

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