By: Grace Drost
“Very demure, very mindful, very cutesy”. If you have been on social media at all this past month, or are subscribed to any company promotional listserv, it is likely this saying is not new to you. This is thanks to TikTok creator Jools Lebron whose fun video describing work appropriate hair and makeup went viral. With this viral moment came a wide range of financial opportunities for Lebron. Brands like Verizon, Lyft, and Synergy Kombucha have all jumped to partner with her. When it comes to her own brand, though, Lebron might be too late.
On August 29th, just three weeks after Lebron posted her original video, she filed “very demure, very mindful” for various entertainment and advertising services with the U.S. Patent and Trademark Office. Although the timing of her filing may seem prompt, several other individuals with no known connection to Lebron had already filed “demure” related applications, leaving Lebron’s application fourth in line for review. Registering a trademark can provide several benefits as a trademark provides a brand with a unique identity, exclusivity in the market, and the right to take legal action to protect a brand’s identity. This can help foster trust and loyalty among customers.
For a trademark application to be successful, applicants must show a distinctive mark that applies to a precise good or service. This means the trademark must clearly identify the source of and distinguish the product or service from others. With three other applications based on Lebron’s video, it may be difficult for her to claim this distinction, especially if the other applications are approved. The review of a trademark application can take anywhere from a few months to a year. A quick search on the USPTO website shows that the review of January 2024 applications is just beginning. Typically, if there are conflicting applications, potentially causing confusion as to the source, the earlier filed trademark will prevail. One of the “very demure” applicants claims she filed with hopes to transfer the trademark to Lebron once the applicant realized other third parties were filing similar applications. While it is possible to assign the trademark to a new owner, the process requires a fee and additional time.
Intellectual property rights and trademark law are complex, time consuming, and can be expensive to obtain. Without taking proper steps to ensure protection, an individual’s brand and finances are at risk. Companies or individuals with extensive resources to navigate these waters have a large advantage compared to the everyday person. When someone like Lebron gets a lucky break and is thrust into a huge opportunity, it feels wrong that someone else may benefit at her expense. Although not having a trademark does not prevent Lebron from selling merchandise, it does not afford her the exclusive use that she may desire.
In a world where these viral moments are hot one second and forgotten the next, time is of the essence when it comes to capitalizing on the opportunity. Delay caused by opposing rival applications made on grounds of false association could make Lebron too late to profit. Assuming that Lebron were to prevail in court, by the time the suits were over, consumers would likely have moved on from the trend. A more expedient alternative could be to negotiate a settlement, but this could prove to be more expensive than it is worth. Even when applicants are acting with good intention to transfer the trademark to the originator, this additional step still requires time and money.
It will be interesting to watch how this situation may affect future viral moments involving individual creators. We live in a world where someone or something is going viral seemingly all the time. Since no one can predict who or what will be the next craze, it seems unlikely the next viral star will be able to prevent a similar situation from happening to them, unless they are up to date on the latest intellectual property issues. While viral moments such as Lebron’s lead to opportunity, capitalizing on the overwhelming attention and newfound platform requires a legal acumen which the average person is not equipped with. It will be interesting to see if trademark law develops to conform with our viral world. For example, a potential solution to bad faith actors applying for trademarks of the latest trend may be the implementation of an authorship factor that would trump filing date.
In conclusion, navigating intellectual property rights is a difficult task for anyone looking to protect their products, services, brands, and more. It takes time, money, and typically counsel. It feels unacceptable that someone in Lebron’s shoes should miss out on legal protections because a third party was quicker or had more access. One of the main purposes of trademarks is to protect brands, and the law needs to keep up on what brands are in this day and age. No longer are brands solely built meticulously over years by companies. In the digital age brands can be established by an individual as quickly as their video goes viral. These individuals’ brands need trademark protection as well.
Student Bio: Grace Drost is a third-year evening law student at Suffolk University Law School. She is a staff member for the Journal of High Technology Law. Grace received a Bachelor of Science degree in Biology from Boston College in 2021.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
