Finding IP Value
Commentary: Trademarking Tragedy
It may not seem intuitive to connect intellectual property rights with a human tragedy, but indeed, the two intersect more often than we realize. This is likely not the proper forum to opine on the propriety of such an intersection, or the motives of those who mine its connections, but it is a topic ripe for discussion because it is so common in today’s world.
In the wake of the Paris Charlie Hebdo massacre on January 7, 2015, people from around the world began showing their solidarity with the victims under the hashtag “#jesuischarlie.” “Je Suis Charlie!” also became a rallying cry for the multiple demonstrations that followed the attack. Forty-eight hours later, someone in the U.S. filed a trademark application for “Je Suis Charlie.” You can check out the filing for yourself.
On its face, the filing appears legitimate — the applicant, the Je Suis Charlie Trust, is seeking to trademark the phrase for “[p]romoting charitable giving that reflects the core values of the donor by providing a method to identify the donor’s core values and to select charities that foster those values.” The application claims the first use of the mark in commerce was “at least as early” as the day of the attacks, though it is unclear how the Je Suis Charlie Trust itself was part of that “use in commerce.” #seemslegit. Also of note is the attorney-of-record and trustee for the applicant of the mark, Steven J. Stanwyck, who was disbarred from the practice of law in California in 2012 for vexatious litigation and “maintaining unjust actions in state and federal courts.”
Less clear is whether the United States Patent and Trademark Office (USPTO) will actually grant the registration. In the past, social movements that enterprising individuals have attempted to turn into trademarks have not fared well. For example, “Occupy Wall Street” was rejected from registration. Among the reasons for refusal, the USPTO rejected the application because the “Occupy Wall Street” name had, at the time of the application, already been associated with multiple movements for social and economic change. As a result, the mark “Occupy Wall Street” would be perceived by the public not as a trademark originating from a single source, but as a reference to many social movements. The mark was determined to be “merely informational” and, because informational slogans or phrases do not function as trademarks, the USPTO rejected the application. #lawyered.
Attempts to trademark “Boston Strong” for charitable purposes met the same end. Such is the power of organic social media — slogans and rallying cries can travel faster than ever before, thereby having no true “single source.” Whether “Je Suis Charlie” will meet the same fate is yet to be determined, but with the global response to the attack under the slogan “Je Suis Charlie!” happening in a matter of hours, it is likely to be rejected as a trademark.
We are long past the “rise” of social media as a medium for protest. Twitter and Facebook are now as integral to garnering attention for social change as the sit-in was in the 1960s. (#twit-in? All rights reserved). Along with that, hashtag-activism (#hashtivism? Rights reserved, there, too) is not going away any time soon. With 140 characters or less, would-be activists can have the attention of the whole world with a poignant slogan. Despite the initial distaste one may have at the thought of someone capitalizing on tragedy, there may be a more legitimate reason for seeking trademark protection in these contexts — to prevent others from capitalizing on tragedy. #thebestoffenseisagooddefense.
If the “Je Suis Charlie” application is truly related to a charity that funds social and economic change resulting from the tragedy of the Charlie Hebdo attack, then securing a registration may help deter unscrupulous interlopers looking to make a quick buck. Such defensive use of a trademark may not have been intended (and indeed, one still must use the mark in commerce to receive protection), but it shows the forethought one must have when pushing for social change in the digital landscape of today.