This blog is authored by Tushar Bhardwaj, 3rd-year student of Lovely Professional University (India).
INTRODUCTION
In the era of competitiveness, enterprises always fear getting ripped off to their identity. After the advent of IPR, especially trademark, protection is provided to the branding under which creative expressions and inventions are sold. A Trademark plays a very crucial role for brands as it distinguishes the goods and services of one enterprise from another. It is a detailed description that portrays the firm’s identity and links it to the objective under which the firm was established.
Enterprises spend a large chunk of money on advertising and marketing. They are trying to save a fortune by choosing a mark for their brand which is already well known and popular in the market. This introduced a new concept of memes as enterprises are using them as a trademark. Memes provide an enticing marketing opportunity as it has the capacity to reach a huge audience within minutes. We have significant precedents, where it has been registered as a trademark, like in the cases of “The Grumpy Cat” and “Damn Daniel”.
In both cases, the owner of the meme managed to successfully register their trademark for their brands. The frenzy of memes can be understood also as the enterprises are trying to register the term “meme” as their trademark and it has been observed in the case of “What Do You Meme” and “Doing Things Media LLC” over their quarrel on “World War Meme”. As a result, it can be said that any entity may be able to register a meme as their trademark if they are the creator of the original keystone.
THE MEME GAME
We are living in the era of technology and innovation. The evolution and development of smartphones and the internet have transformed everything including our modes of entertainment, which has given rise to a new concept called “meme”. Memes are graphical, pictorial or phrasal representations in which the creator tries to depict or convey his message, idea or attitude. It could be funny, derogative, offensive or rational. The word meme was derived from the Greek word “mimea” which means to imitate, and was first introduced by a biological scientist Richard Dawkins in his work ‘The Selfish Gene’ in 1976.
Memes certainly provide an enticing marketing opportunity for brands. Enterprises and individuals go all out to establish a unique and catchy brand for themselves by using the popularity of memes. Marketing with memes is an understated trend that got popularity over time. Viral memes act as a tool for the entities to grasp the attention of buyers. No wonder, why the entities are jumping on the meme marketing bandwagon and want to register viral memes as their trademark.
Can We Register the Word ‘Meme’ as a Trademark?
The question here itself is, can we register the word ‘meme’ as a trademark? Recently, the United States Patent and Trademark Office (USPTO) received opposition from a company called “What Do You Meme LLC”, which is a manufacturer of pop culture games, against an advertising company, “Doing Things Media LLC” over their trademark application for “World War Meme”.
The proponent intends to use the term for their product “card games and trading cards for games” in the same class and deal with the same types of products in which the opponent’s trademark is already registered. The opponent contended that granting the registration of the term ‘meme’ will arise confusion among the consumers as both the marks are deceptively similar. They also claimed that they have acquired distinctiveness over the brand name as they have several trademarks registered under various classes with USPTO. The above matter is pending before the Trademark Trial and Appeal Board (TTAB).
It is very common for entities to use generic words with some alteration as their trademarks. As, we can see “The Burger King” is a well-known brand in the world but despite of having such phenomenal recognition, they are unlikely to assert or stop any brand to use the term “Burger”.
Key Elements for a Meme as a Trademark
A trademark is a visual symbol that provides branding to an enterprise and which connects its goods and services to a specific source or an entity. It protects the branding under which creative expressions and inventions are sold. It enables the protection for a word, phrase, symbol and/or design that distinguishes the source of the goods and services. In technical terms, a trademark can be registered with a device means registered with a logo or without a device means registered without a logo.
However, a meme can also be represented as a logo. So, we can register meme as a trademark, if you are the creator or composer of a keystone. A keystone is a constant part of a meme that gets altered or modified by removing or adding text, colour, texture or any change made in the keystone by different internet users which ultimately, shaped as a meme.
The best exemplification of this was the keystone of “The Grumpy Cat.” In this case, the keystone was “The Grumpy Cat” himself. The cat became an overnight sensation because of his perpetually grumpy-looking facial expression. The owner of the cat registered a trademark with the name in connection with an array of goods and services like books, posters, mugs, etc.
Conclusion
Viral memes have a massive impact on common people as memes somehow also connect with their life directly or indirectly. Memes can hold great brand power, and due to this fact, many enterprises are trying to grasp this opportunity. Many significant and famous celebrities have already tried to register memes or a common phrasal as their trademark. Cardi B has tried to file an application for a trademark on the catchphrase “Okurrr” to use on clothing and paper goods. LeBron tried to do the same with “Taco Tuesday.” Both these applications got rejected on the basis that the phrase was a commonplace term and expression, that is widely used in common parlance.
The craze of memes can be inferred also in cryptocurrencies as some of them are based out of memes. The doge meme is converted into virtual currencies like “Dogecoin” and “Shiba-inu.” Ultra Pro International LLC is also trying to trademark “Doge” for their sports and gaming brand. Registration of memes as a Trademark is still a disputed area. The memes are harder to register as it is very hard to find the source or the creator. The keystone or image may remain the same but its text changes from time to time in order to refine the jokes by millions of internet users which helps the meme to contain its popularity.
LAW AND TECH TIMES 