Wrangling in “the Left Shark” – What is Happening in the World of Celebrity Trademarks?

Left Shark Steals the Show, by Huntley Paton, pictured here in accordance with the following license:https://creativecommons.org/licenses/by-sa/2.0/
Left Shark Steals the Show, by Huntley Paton, pictured here in accordance with the author’s license.

Part 1 of a 3-Part Series on Celebrity Trademarks:

In recent months we have seen a lot of headlines regarding celebrity trademarks. While performers have been trademarking their name for years – it may surprise you to learn that Frank Sinatra obtained trademark protection in 1935 based on his first performance as a singer – it is a relatively new trend for celebrities to attempt to trademark sayings, song lyrics, and now, stage mascots (i.e., Katy Perry’s Super Bowl back-up dancer, the “left shark”). Some of these suspect trademark claims include Marshawn Lynch’s application for his Super Bowl answer, “I’m just here so I won’t get fined,” and Taylor Swift’s slew of filings for lyrics from her album “1989” (since October 2014, over 35 trademark applications have been filed on behalf of Swift, including applications for such banal phrases as, “nice to meet you, where you been?” and “this sick beat”). So why are celebrities now seeking to trademark everything vaguely associated with their name? And how legally viable and successful are such celebrities’ lofty trademark (and other intellectual property) pursuits?

Before answering these questions, we must first address how the media has, unfortunately, done an excellent job of sensationalizing and destroying the facts surrounding many celebrities’ intellectual property endeavors. So, let’s first distinguish the 3 main categories of intellectual property rights.

Intellectual Property Rights and Differences

Generally speaking, there are 3 main areas of intellectual property: (1) patent; (2) copyright; and (3) trademark. Broken down:

  1. Patent: Essentially a product or process that is new and useful, in which we provide the inventor exclusive right to use for 20 years (think invention);
  2. Copyright: An original work of authorship with a modicum of creativity that is in a fixed tangible medium (think book or work of art); and
  3. Trademark: Technically any word, name, symbol, or device or any combination thereof, used by a person to identify and distinguish his goods from those manufactured or sold by others, and to indicate the source of the goods (think brand name).

Additionally, there is an important distinction that the media has failed to convey to the public – the difference between filing for a trademark and being granted a trademark. If a celebrity files for trademark rights, but is denied, they obviously have nothing, no IP rights. However, if a celebrity files for trademark rights and they are granted, then the rights are enforceable from the date of filing.

The Purpose of Trademark Law

Think of a time when you have walked into a department store and approached the clerk asking for, “the most reliable television.” The sales clerk tells you which brand of television is considered the most reliable, what features that brand has, and the clerk then assists you in purchasing recommended brand of television. This is the essence of trademark law: protecting the public from deceit (i.e., preventing consumer confusion as to the source of a good or service), promoting fair commercial competition, and providing companies security in their branding endeavors and goodwill. That is, the purpose of a trademark is essentially to protect the consumer, so that he or she may confidently purchase a product bearing a particular trademark that the consumer knows and trusts, while also ensuring that a trademark owner’s energy, time, and money spent in developing the goodwill associated with the mark is protected.

If trademark law is about protecting the consumer and the goodwill associated with a particular mark, then how and why are celebrities such as Taylor Swift, Katy Perry, and Beyoncé applying for trademark protection of ordinary phrases (and apparently stage mascots like the “left shark”)? The likely reason for celebrity trademark filings is both money and control.

Celebrity TM Filings: Money and Control

Though it may seem obvious to argue that celebrities are pursuing trademark rights for financial gain, this is perhaps even more true in recent years. While many celebrities are very wealthy, the current digital age has disrupted several traditional business models (e.g., Pandora and Spotify), leading some celebrities to seek new streams of revenue, such as branded and signature merchandise including clothing, bags, etc. Additionally, modern social and digital media allow for random phrases or slogans to go viral in a matter of mere minutes. When these sayings go viral, it is undeniable that protections afforded by trademark rights can prove valuable to the business savvy celebrity who owns them – comparable to owning valuable real estate. However, although money is never not a factor when dealing with the ridiculously wealthy, it is arguably not the factor for people such as Katy Perry. Thus, leading us to another motivation for celebrity trademarks: control.

Wielding control over their mark can be a powerful defensive tool for a celebrity, preventing the dilution of their mark, image, or saying. It can also allow a celebrity to protect the image associated with their name. Truly, trademark control is arguably the most essential tool when it comes to branding and image recognition.

However, beyond control being a defensive tool, these trademark claims are about power. The celebrities making these wild claims are already known for being controlling. Beyoncé has already revealed that she keeps virtually every photograph ever taken of her, every interview ever given, every video ever taken, etc., in a temperature-controlled digital storage facility, likely so that she can both profit from them and control how they are distributed. Indeed, Beyoncé sings “bow down, bitches” for a reason. These celebrities want complete control over everything that is even tangentially related to their image, their name, their work, their brand, and their trademark.

Are Celebrities’ Trademark Claims Viable? Will they Be Successful?

The reality is that some of the trademark applications celebrities apply for will be successful (e.g., Taylor Swift has already been granted trademarks for some of her various song lyrics). Admittedly, there are challenges to these trademarks: some of the goods claimed in the applications are extraordinarily broad, and the United States Patent and Trademark Office may decide that the titles, lyrics, and mascots are nothing more than ordinary slogans and common images which are not necessarily associated with the celebrity (ironically, though, the media frenzy that has begun to surround these applications may then, in fact, aid in the successful registration of various celebrity trademarks). However, with an expensive, large, and knowledgeable legal team behind the celebrities seeking trademark protection, these celebrities will make the correct business and legal moves to ensure many of their trademark applications are successful.

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