Can You Ever Really Trademark A Meme?

closePlease note: This post was published over a year ago, so please be aware that its content may not be quite so accurate anymore. Also, the format of the site has changed since it was published, so please excuse any formatting issues.
yolo

A humorous take on the YOLO craze. Photo by flickr user froderamone.

If 2012 had a catch phrase, YOLO may well have been it. The much-derided abbreviation for “You Only Live Once” was as popular in the past year as Psy’s K-pop hit Gangnam Style. It will come as no surprise that many companies and individuals have tried to profit off of the craze, but one odd case is Canadian hip-hop artist Drake, who claims that he should be receiving royalty checks for commercial use of the phrase. In a world where memes grow and spread faster than ever, and their lifespans grow ever shorter, how feasible is it to “own” something like YOLO?

Morning Edition’s Neda Ulaby filed a report last week in which she argued that our collective attention spans have grown shorter than ever, with 2012 having some of the fastest rises and falls of internet fame.

“Call it the quartering of the half-life,” she wrote. “In the past year, the speed with which we cycle through online videos, games and memes has increased enormously.”

The meme machine is running at a furious pace, and an idea can go from unknown to overblown in record time. Take the Kony 2012 movement. It took only a few days for the now-famous video to smash previous records, but within about a month, the call to action that had taken the world by storm was all but dead—the victim of criticism and controversy surrounding the video’s creators.

This accelerated lifespan poses a problem for those who want to create viral awareness of their brand, but also want to protect their mark.

Since you’ve probably never had to think about it before, you are probably not aware of exactly what a trademark is, what it does for its owner, and how it all works. From the United States Patent and Trademark Office’s website (edited for brevity):

A trademark is a brand name [and] includes any word, name, symbol, device, or any combination, used to identify and distinguish the goods/services of one seller or provider from those of others.  Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant’s claim of ownership, legal presumption of ownership nationwide, and exclusive right to use the mark in connection with the goods/services listed in the registration.

The tl;dr of that is that a trademark gives the owner of the mark the legal standing to sue the pants off of anyone who tries to profit from their mark without permission. Registering your mark with the USPTO gives you a much stronger case, national protection, and allows you to use the ® symbol (registration is not required to use the ™ symbol).

Nothing is ever that simple, of course, especially when dealing with the U.S. legal system.

Rights-holders must protect trademarks and servicemarks from infringement, and failing to do so can cause them to fall into “non-use,” and potentially open them up to the public domain. The only way to protect a mark is to actively find infringing parties, inform them of their transgression, and then take them to court when they don’t respect your authority. I should point out that this is a super basic explanation of how all of this works.

yolo_cake

This cake has swag. Or whatever the kids are saying when you read this.

So think about that for a moment. You come up with a brilliant catch phrase and start to use it as your motto, hoping that people will think of you when they hear it. To protect your commercial interests, you tag a little ™ on there (one of the first steps of the trademarking process). Naturally your idea is so brilliant and catchy that now everyone is using it. And I mean everyone. It shows up on clothes, on cakes, on Facebook, on Instagram, and it’s trending on Twitter. You’re no longer in control of what you created, and you’re not profiting from the proliferation. Chances are you don’t have the time to track down the infringing parties, or the money to take them to court. You’ve lost your mark before you even had a chance to protect it.

Granted, not every use of your mark is cause for a lawsuit (in fact, some non-permissive uses of trademarked material may even be protected by fair-use laws), and all those tweens tagging #YOLO all over the Internet aren’t diluting Drake’s claim. The real threats are the more than 80 claims already on file with the USPTO.

If anything, Drake should be ecstatic that YOLO has become the runaway phrase that is has. Every tweet, every ugly hat, every rainbow cake that bears his catchphrase is a free advertisement. You can’t buy that kind of coverage, but you can benefit from it, even if indirectly.

At any rate, I don’t see what he’s getting to worked up about. Life’s too short to spend it stressed out about a glib catch phrase, and as we all know, you only live once.

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