The Trouble with Trademarks

Copyright was bad enough. Now this more strict and poorly-understood system of protecting intellectual property is freaking out the internet.

I got my first trademark in 2005: “EcoGeek.” It was the name of a blog that had become my job. I had a dream of turning it into a big business. After spending a huge amount of time and money attempting to “protect” that trademark, I let it lapse. It was still 2005.

Intel used my logo on some of their packaging, they never even apologized! But really want I wanted to protect against was other websites starting up blogs called “EcoGeek” which I was also unable to protect against.

No one really knows how trademarks work. I don’t mean, “Come along with me on this journey and you will be one of the righteous few who truly understands!” I mean, no one really understands how trademarks work. That’s why lawyers spend so much time (and make so much money) arguing about them in courts.

The basic idea is that I shouldn’t be able to start a business called Burger King and use Burger King’s logo and serve Whoppers in BK-branded boxes. That would be confusing to customers and damaging to Burger King. This is pretty cut and dried. Burger King has trademarked the name Burger King (and also the name Whopper) and no one else can use them.

But wait, what about Whoppers!?

Notice that “The Original Malted Milk Balls” has a TM and “Whoppers” has an R? Guess what, THEY’RE BOTH TRADEMARKS and THERE IS A DIFFERENCE and it’s WEIRD and NOT WORTH GETTING INTO.

Turns out you only get to trademark for specific uses. Candy Whoppers have their candy trademark and Burger Whoppers have their burger trademark (there’s also a casino game called “Bingo Whopper” with a live “Whopper” trademark, if you’re curious.)

Copyright and Trademark are completely different things. Copyright prevents anyone from copying this article and posting it somewhere else. Copyright happens instantaneously the moment I write something down that is unique and from my brain. Trademarks are far more restrictive. They prevent you from using words or phrases at all in certain circumstances. Trademarks are all about consumers being able to recognize the source of a product and, as such, there are words and phrases that simply cannot be used in certain circumstances by anyone except the trademark holder.

Copyright is like, just don’t copy exactly what someone else said or created. Trademark is like, “YOU CAN’T EVEN USE THIS WORD GO AWAY.”

A Good Example

You may have seen attractive tan people at Wholefoods sporting the slogan “Life is Good” on their t-shirt. Well, remarkably enough, in 1994, a company managed to get the apparel trademark for “Life is Good.” This means that, if I wrote the phrase “Life is Good” in Sharpie™ on a t-shirt and started selling them on Etsy™, those heroes of social good (and monsters of intellectual property) could sue me.

LG, the Korean electronics company, has trademarked “Life’s Good” for use in electronics as well. SO BE CAREFUL WHEN TALKING ABOUT HOW GOOD LIFE IS YOU GUYS!

Not only that, but technically they would need to sue me. If your mark starts to be used by others, eventually public perception no longer aligns your product with the mark. Once that happens, it becomes difficult to legally protect your trademark and one of your most valuable assets could vanish.

This is why trademarks are expensive and why you occasionally hear about a giant corporation suing some midwestern mom. They have to protect their trademark or risk losing a thing they have paid huge amounts of money to create and maintain.

The internet has made all of this even more complicated.

My brother and I semi-coined a phrase back in 2007, “Don’t Forget to be Awesome.” We use it as a sign-off in our videos and our merchandise is sold through DFTBA.com. We made a decision early on that we couldn’t trademark DFTBA or “Don’t Forget to be Awesome” for use on apparel because then we would have to enforce it against Urban Outfitters and fans equally. If we sued every big company that’s sold something with “Don’t Forget to be Awesome” on it, their lawyers would just point to the scads of fan-made stuff and say “They aren’t protecting their trademark” and we’d lose the case.

This is the video in which my brother discusses all of the people who we don’t like who have used our catch phrase and why we let them do it anyway.

There’s also just the VOLUME of stuff. There is so much more commercial content in the world now that protecting trademarks has become a very weird and subjective game. Putting a trademark in the title of a movie or song, for example, is the kind of thing you want to avoid. The TMBG song “AKA Driver” was going to be called “Hey NyQuil Driver” until their lawyer advised them against it.

But now every YouTube video has a title! And most YouTube videos could legally be considered named, commercial products. Does Vick’s have to go through and take down every video that has “NyQuil” in the title? No, obviously not. But could they? Maybe! NO ONE KNOWS!

Recently, filmmaker Devin Graham had a video removed from his extremely popular YouTube channel because the title was “People Are Awesome” which turns out to be trademarked by Jukin Media (a company that mostly licenses viral videos.) Jukin routinely goes through YouTube and removes videos that have “People Are Awesome” in the title.

This is the first time in all of my paying attention to YouTube that I’ve seen the phrase “Video Removed: Trademark Issue.” Jukin later apologized for not reaching out to Devin before taking the video down.

Now, The Fine Brothers have trademarked the “React” for use in online video as part of a plan to grow their extremely successful format internationally. This is a perfectly normal thing for a media company to do if the USPTO allows it (and they have). They have a brand, it’s their’s, you could easily argue that, since “Kids React” morphed into a dozen other “React” shows on YouTube.com/React, so The Fines could trademark “React.”

The Fine Brothers announcing a licensing program basically franchising out their “React” format has been met with a mix of confusion and the kind of vitriolic animosity that only the comments section could muster.

The internet has not been so forgiving . The above video has about 170,000 downvotes and a lot of comments that unsurprisingly misunderstand how trademark and copyright work and what the Fines are actually planning to do. From my perspective, this could actually be a very cool project if it could be divorced from the idea of two very powerful creators attempting to control a very popular YouTube video format. Franchising one of YouTube’s biggest shows? Yeah, I’d love to see how that goes.

But the question becomes…what are the Fines going to do with their trademark? Certainly they won’t take down every video on YouTube with the word “React” in it. I’m sure they would take down videos with “Kids React” in the title, but what about something that takes the form of their show and title but adds in a new element like “Dogs React” or “Bros React.”

Would they take that down? How close does it have to be to infringe? Would they need to take videos down in order to protect their trademark? It likely depends on which lawyer they asked because, as I said before, no one really understands trademark.

The internet has taken a solid 10 years to even start figuring out what copyright might look like in an era where everyone’s a creator. And with Facebook still not protecting against freebooting and YouTube having no good system for protecting fair use, we’re still a ways away.

Add trademarks into the bag and, I mean, yikes. The initial salvos have been fired and the trademark holders are the ones that are coming out looking bad. But a bunch of laws designed for a different era are on their side, so we will have to wait and see.

CORRECTION: An early version of this article said the Fine Brothers were seeking to register “React” as a trademark. In fact, they have registered that trademark and it is currently live.