29/08/2024
TikTok, and social media in general, offers potential for anyone/ anything to go viral and become well known. The unpredictability of what or who is going to be the next big thing means that predicting and preparing for heightened social media exposure is extremely hard to do. This therefore leads to questions regarding how content creators can protect, or know when to protect, their work to prevent others from unjustly benefiting from it.
Those who are avid TikTok users would likely have heard of Jools Lebron, and would most definitely be familiar with her popular catchphrase ‘Very Demure…. Very Mindful…’. #demure has been used in almost half a million videos. Products and brands have been increasingly utilising the tool of social media for marketing campaigns. We are now seeing the increase in individuals who have established themselves on social media and are in turn creating personal brands. Here, the phrase ‘Very Demure… Very Mindful..’ is an example of a catchphrase going viral rather than an individual/ product being at the forefront. How can Lebron ensure that she benefits from the social media success generated by her creation and utilise her current position to try and ensure such success is not short lived?
By considering the catch phrase as a trade mark which could be protected, Lebron could be able to legally prevent third parties from unofficially monetizing from her phrase e.g., preventing an unofficial retailer introducing merchandise containing the phrase. But how fast do people need to act once they see social media success? It has been reported that on the back of her social media presence resulting from her phrase receiving such large-scale attention, Lebron has been creating content with well-known brands such as Netflix and K18.
Whilst Lebron was focusing on collaborating with such companies and elevating her personal brand, according to TMZ, in the US a man called Jeferson Bates from Washington applied to register the trade mark for her phrase ‘Very Demure… Very Mindful…’. If this application is successful, it would enable Bates to prevent anyone from using and benefiting from the phrase. This includes the creator of the phrase Jools Lebron.
Although Bates’ application was the first, there are now at least two other applications on the USPTO register for variations of Lebron’s phrase. This is a clear example of third parties attempting to coattail off of other’s success and seek to profit from it.
Not all faith is lost for Lebron as it has been reported that trade mark lawyers in the US are positive that as long as Lebron files an application for her phrase, given her current use and ability to evidence intention for future use, and Bates’ non-use they would be able to prevent him from successfully registering his application.
It does not appear that there are any current trade mark applications in the UK for ‘Very Demure… Very Mindful…’, however given the phrase’s popularity and high levels of use on social media it is highly likely that applications will soon be filed. The question is by who.
It is a lesson to many that in order to avoid costly and lengthy legal disputes, and possibly losing rights to your content, considering your legal position must not be a second thought. This is especially in the world of social media where ‘use in the course of trade’ may be harder to establish, and hence arguing that there is good will in your unregistered mark would be harder to evidence. A positive of the capability that going viral has for elevating a creator’s social media presence is that it may be easier for creators to argue that third parties have filed in bad faith. This is as they have the ability to argue that due to their extensive online presence, the third parties would have clearly been aware of them and only filed applications in an attempt to prevent the original creators from monetising their own work. Bad faith is generally only recognised in the UK and EU.
Therefore, for those wanting to benefit from their content going viral and not miss out on the often short lived ‘hype’ it is clear that considering trade mark registrations to protect their work and prevent others from benefiting from your success is vital.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
