Meme Trademarks

 Leveraging Internet humour and turning it into brands.

Those times are long gone when memes were only consumed and shared to express humour and entertainment. Social media platform – Instagram in the year 2020, revealed that over one million posts were shared on its platform mentioning the word “meme” each day by its users[1]. Today, memes have evolved and are being used for all kinds of expressions that can influence a human mind, be it, ideas, faith, politics, marketing, and even propaganda. In just a few years, memes have progressed dramatically and spreads much faster in our social culture than any other trends. Thanks to the internet and its relatability amongst people, memes have become one of the powerful tools and, businesses are actively seeking to capitalize on it for their brands.

Originally the term ‘meme’ was coined by Richard Dawkins in his book “The Selfish Gene”[2] which defined it as a concept for discussion of evolutionary principles in explaining the spread of ideas and cultural phenomena. Merriam-Webster dictionary defines the modern meaning of meme as “an amusing or interesting item (such as a captioned picture or video) or genre of items that is spread widely online especially through social media”.

Generally, memes are composed of an edited image, GIF, or video clip of a popular and relatable figure, accompanied by a text to provide a humorous context. Due to the artistic nature, such memes are protected under the copyright law as long as the image, video, or GIF used in the said meme is an original work of creation. People sharing memes for humour/entertainment that contain copyrighted material commonly falls under the doctrine of fair use, provided the person creating / sharing the meme is not using it for any commercial activity. Having said that, in the midst of this social revolution on the internet, small businesses and big corporations have realized the actual potential of such viral memes and are taking an interest in securing trademark registrations for the viral catchphrases/logos associated with the internet memes in order to fully exploit their popularity and public engagement. One of the memes which became viral worldwide and rose to tremendous fame on the internet was the Grumpy Cat meme. [3] This meme evolved from a photo of an American cat named “Tardar Sauce,” known for her permanently “grumpy” facial appearance, which was caused by an underbite and feline dwarfism. The cat’s photo when shared on the internet became viral leading several users to create and share humorous memes using the cat’s image. The owners of the cat quickly realise the value of the fame they have received on the Cat’s meme and secured the rights on the image and name “GRUMPY CAT” by filing copyright and trademark applications. They founded the company under the name, Grumpy Cat Limited and built an entire business by selling everyday objects bearing the image of the cat face and the name “Grumpy Cat” such as books, door décor, cat strap, T shirts, balloons etc. As per WIPO records, the company has obtained several trademark registrations for the mark GRUMPY CAT and device of the cat  in prominent jurisdictions such as the United States, Israel, and the United Kingdom. In the case of Grumpy Cat Ltd. v. Grenade Beverage LLC[4], Grumpy Cat Ltd (Plaintiff) was awarded USD 700,000 in damages against Grenade Beverage LLC (defendant) who was creating and selling a ground coffee product using the Grumpy Cat mark and its image beyond what was authorized by the Plaintiff in the licensing agreement. The US District Court of California Southern Division held the defendant liable for copyright and trademark infringement, breach of contract and cybersquatting.

Given the broad definition of trademarks, the viral catchphrases/logos embossed in memes are eligible for trademark registration provided they are used in respect to goods or services. There are many viral catchphrases which also evolved from memes that became popular on social media and were eventually registered before the Trade Marks Registry. In India, celebrity investor and entrepreneur, Ashneer Grover, in one of the episode of Shark Tank India used the phrase “Yeh Sab Doglpan Hai” which instantly became viral and many memes on the said catchphrase flooded on the internet.

Mr. Grover, after discovering the popularity of the catchphrase – DOGLAPAN, applied a word mark application to register “DOGLAPAN” which means hypocrisy or double standard.  The Indian Trademarks Office granted registration for the same on December 12, 2022. [6] Later, he published his autobiography under the title “DOGLAPAN” which became a best seller and currently the book holds rank no. 7 in Business Entrepreneurship Textbooks on Amazon Book store.[7]

Another catchphrase that took the internet by storm, not just in India but worldwide, was the “BINOD” meme. This viral meme, consisting of just one word, emerged when a YouTube user named Binod Tharu posted “Binod” in the comment section of a video on the YouTube channel “Slayy Point”. Later, Slayy Point released a dedicated video on “BINOD,” highlighting how odd the comment was. Subsequently, hundreds of BINOD memes began flooding social media daily, leading to “What is Binod” becoming one of India’s most searched terms on Google in 2020.[8]

Ultimately, Slayy Point’s founder – Abhyudaya Vats Mohan filed a word mark application for the term “BINOD” in class 25 in respect to clothing related goods which was granted registration by the Indian Trademarks Office on July 12, 2021.[11] Later, Slayy Point launched its official clothing merchandise under the brand BINOD on their website and Facebook.[12]

The above examples show that it is possible to secure trademark registration for catchphrases emerging from viral memes. These catchphrases are eligible for trademark protection and can be utilized as a brand name, slogan, or tagline for a product or service, even though they consist of common dictionary words. The Hon’ble Delhi High Court, in the case of Kohler Co vs Registrar of Trade Marks[13], in respect to the registration of the tagline “BELIEVING IN BETTER” held that the taglines/ slogans which consists of common dictionary words, when used together, do form a creative and distinctive expression. The relevant extract of the aforementioned judgement is reproduced herein below:

 “5. Although the aforenoted words are common dictionary words, but when used in conjunction with each other, as a tagline, form a creative and distinct expression. Indeed, slogans or taglines are treated like word marks while processing for registration. Several generic common English words which constitute taglines have been afforded protection under the Act. Although a tagline conveys a simple message, it can also be abstract to the extent it indicates commercial origin of the goods or services.

Statistics have shown that the average millennial looks at around 20-30 memes daily[14], and the global meme industry is projected to grow to $6.1 billion by 2025[15]. Therefore, it is important for meme creators, authors, and businesses to timely secure their memes including the catchphrases, artistic works, logos, and other relevant elements for safeguarding their interest from third parties and maximising their commercial potential.

Author: Ravi Chadha and Farhaan Rizvi

Footnotes

[1] Information sourced from a blog titled – “Instagram Year in Review: How Memes Were the Mood of 2020”, published by Instagram: https://about.instagram.com/blog/announcements/instagram-year-in-review-how-memes-were-the-mood-of-2020

[2] Information sourced from the Book – The Selfish Gene (2nd ed.). Oxford University Press. p. 368

[3] Image sourced from the website: https://metro.co.uk/2019/05/17/30-iconic-grumpy-cat-memes-9586691/

[4] Case No. SA CV 15-2063-DOC (DFMx) (C.D. Cal. May. 31, 2018), United States District Court Central District of California Southern Division, May 31, 2018 (https://casetext.com/case/grumpy-cat-ltd-v-grenade-beverage-llc/ )

[5] Image sourced from: https://www.news18.com/buzz/ashneer-grover-roasted-for-doglapan-over-listing-iit-delhi-on-his-linkedin-6947821.html

[6] Indian Trademark Application no. 5439887

[7] Information sourced from: https://www.amazon.in/Doglapan-Hard-Truth-about-Start-Ups/dp/067009711X

[8] Information sourced from an article – “What is Binod? – The question that Indians looked up on Google in 2020”,  published by Times Now News: https://www.timesnownews.com/the-buzz/article/what-is-binod-the-question-that-indians-looked-up-on-google-in/692519

[9] Image sourced from: https://www.india.com/viral/mystery-solved-who-is-binod-here-is-how-the-twitter-meme-fest-originated-4106503/

[10] Screenshot  of the social media post sourced from: https://www.thetechoutlook.com/news/technology/web-social-media/mumbai-police-message-on-twitter-about-binod-is-going-viral/

[11] Indian Trademark Application No. 4628176

[12] Information sourced from : https://www.facebook.com/watch/?v=1853889381415705

[13] C.A.(COMM.IPD-TM) 34/2022, 16 January, 2023

[14] Information sourced from an Article – “Memes: A Digital Marketing Tool for Every Industry”, published on Forbes Magazine: https://www.forbes.com/sites/forbescommunicationscouncil/2018/08/10/memes-a-digital-marketing-tool-for-every-industry/?sh=263433152664

[15] Information sourced from an Article – “In a World Full of Advertisers, Be A Memer”, published on LinkedIn

: https://www.linkedin.com/pulse/world-full-advertisers-memer-tradeflock-crjjc