We bring to you an insightful guest post by Harshavardhan Ganesan where he examines the growing trend and relationship between trademark applications and tragedies. Harshavardhan Ganesan is currently an LLM student at the University of California, Berkeley where he is specializing in Intellectual Property Law.
Trademarking Tragedies: Of Brexit Beer and the Nirbhaya Bus
by Harshavardhan Ganesan
While the recent political divorce of Britain and Europe was difficult to swallow for many both in Britain and elsewhere, an American Beer company, has other ideas to keep people in high spirits, pun intended. Boston Beer, the maker of Samuel Adams Boston Lager, is seeking to trademark “Brexit”, a portmanteau for British exit/Britain exit, as a name of a hard cider. Apart from the hard cider, applications to register BREXIT as a trademark were also filed on June 24th by an individual in Chicago for clothing and by a company in Colorado for dietary and nutritional supplements. As one report notes, the applications were filed even as millions around the world were waiting with bated breath for the results of the referendum. An inadvertent ramification of Brexit, has also been the revival of secession movements in America, such as Calexit (California exit) and Texit (Texas exit), and with it, Secessional trademark applications! For example, the application made to the USPTO (United States Patent and Trademark Office) for “Texit” apparently covers hunting apparel, T-shirts and baseball caps.
In the realm of trademark and branding, such opportunistic applications are becoming increasingly common. What is demoralizing, however, is the spate of applications that trademark offices all over the world receive after tragedies occur. While it is quite common for individuals and other large conglomerates to employ marketing executives to scour pulp-fiction, news bulletins, and other socially relevant items to gauge interest levels, some companies don’t know when to stop. Take the example of Je Suis Charlie (“I am Charlie”). A few hours after the gruesome attack on the French satirical magazine Charlie Hebdo on January 7, 2015, an artist living just a few blocks away from the magazine’s offices tweeted an image with the words Je Suis Charlie as a way to show sympathy for those killed and to stand up for free speech. With the increased reliance of social media, the term went viral, tweeted at a rate of 6,500 times per minute and 3.4 million times in under 24 hours. The French Institut National de la Propriété Industrielle – France’s national intellectual property office was so overburdened with the number of applications it received, that it had to issue a formal statement that it was not going to receive any more applications because the term had become generic. Unfortunately it had to repeat the same exercise after the Paris Attacks in November, 2015.
Closer to home, India’s tryst with opportunistic TM filings is still in a nascent stage, though not for a lack of tragedies plaguing the country. India’s association with opportunistic trademark filings has been fleeting at best.
As this table prepared by S.S Rana & Co. Associates shows, the temporal gap between the date of the tragedy and the date of the TM application is wide, with the trademark applications filed up to 6 years after the tragedy occurred. Just to clarify, I am neither recommending trademark opportunism, nor bemoaning the lack of opportunism, but am merely pointing out (thankfully) how rare the occurrence is in India. It is imperative that the legislature nip the bud, and lay down clear guidelines on ‘tragedy trademarks’.
Depending on your political inclinations, the schism between Britain and the rest of the EU is a tragedy. The ramifications are several and felt by millions all over the world. Ironically, in this time of political isolationism, Trademark registrars across the world are united by the increased number of opportunistic trademark applications they receive. Over the past fifteen years, the United States Patent and Trademark Office (USPTO) has seen an influx in the amount of trademark registration applications filed in the wake and as a result of tragedy. BOSTON STRONG, LET’S ROLL, BLACK LIVES MATTER, I CAN’T BREATHE, CECIL THE LION are all examples of trademark applications made in the wake of a horrible incident by individuals attempting to profit off of these tragedies. The popular adage, where there’s smoke there’s a fire, has been distorted to read where there’s a tragedy, there’s a trademark application.
On the other hand, perhaps I am being too harsh. Admittedly, not all of the trademark applications were filed with vile profiteering motivations. For example one of the applications received after Cecil the famous lion, was shot and killed on the orders of dentist Walter Palmer, was an application to trademark CECIL THE LION for a charitable fundraising service. Therefore, perhaps we must scrutinize the macro picture, where certain questions of the normative brand arise.
For starters, take the above example of the noble application for a fundraising charity in the name of Cecil. While such a trademark application tugs at our hearts and is met with hasty approval, imagine if the application was for using the same trademark for a specific brand of rifles instead. PETA, WWF and other organizations would be up in claws! Would their outcry be legally tenable though? By prioritizing altruism (charity services) over a legal, yet “immoral” activity (Hunting rifles), and making decisions on TM applications on that basis, we force TM registrars all over the world to play the role of value judges. They not only have to decide whether the mark has acquired distinctiveness, but also the contextual history surrounding the mark. Further, by allowing a trademark for charitable services while denying it for a brand of guns, aren’t we implicitly making a value judgement as to what is a morally acceptable trademark and what isn’t?
On the other hand, maybe certain value judgements are inherent in the governmental system, and trickles down to the trademark office as well. This can be clearly reflected in different legislations across the world. India’s Trademark Act, 1999 provides that s.9(2)(b)and (c) which provides that a mark shall not be registered if it contains anything likely to hurt the religious susceptibilities of any section, or if it comprises or contains scandalous or obscene matter. The European Union Intellectual Property office has a public order provision available to it, which is quite a flexible concept. In America as well, §2(a) of the Lanham Act disallows registration of a mark which consists of or comprises immoral, deceptive or scandalous matter. This section has come into the spotlight thanks to the Washington Redskins case, wherein Native American tribes and advocacy groups are petitioning for the Washington Redskins trademark to be revoked. The case has stirred widespread media attention, because it involves two things that Americans absolutely love, one is football (American football, lest you are confused with the more beautiful sport, ‘soccer’) and two, politics. The presumptive Republican nominee Donald Trump vowed to restore the Washington Redskins trademark on day one of his presidency blaming “extreme political correctness” for wreaking havoc on the country. As an Intellectual Property aficionado, I don’t know whether to be happy that trademark issues are being discussed by presidential candidates, or to bemoan the day that Donald Trump uses trademark law to further his brand of demagoguery. Irrespective, it seems that there is a weapon to prevent despicable trademark filings like ‘ISIS lives matter’, ‘26/11 hotels’, ‘Nirbhaya buses’ or any other such deplorable opportunistic applications.
Unfortunately the world isn’t as black and white as we’d like to believe, neither are trademark applications. Neither are all opportunistic trademark application filings oozing with humanity (animal-ity in this case) like the Charitable Cecil the Lion service, nor are they all tainted with vitriolic hate messages. The bulk of applications are in fact more insipid. Therefore, this requires us to look at the larger picture and ask are any sort of opportunistic trademark filings, irrespective of whether they identify a charity or a clothesline, valid?
The entire situation is quite paradoxical. The general tenet of trademark law dictates that a company would come up with a term for a brand or business, trademark it, market the product and grow it into recognition as associated with the trademark holder. Opportunistic trademark filings reverse that trend. They use an already well known term and then attempt to match that term to a particular brand. Not only does it show creative stagnation but also attempts to trademark a phrase or a word that has already been used by a sizable chunk of people. A concomitant issue due to the reversal of the order in which there is brand identification, is that most of these popular terms can’t serve as a source-indicator. Therefore these terms lack the quintessential crux of a trademark i.e. to be a source identifier.
Finally, I wish to address the ethics behind trademarking tragedy. When ethical lapses occur in business decisions, they rarely happen in situations when what is right and what is wrong is clearly defined. They more typically occur when what is morally right is blurry. While the prospect of trademarking a popular term coming out of the news cycle sounds appealing, perhaps restraint should be exercised. In the case of Brexit for example, while the idea to trademark their beer’s name with a political upheaval might seem ingenious to Boston Beer, it makes a mockery of a very serious political occurrence, with wide ramifications for individuals all over the world.
Perhaps I am being too ‘politically correct’. Playing devil’s advocate (as a lawyer, it is sometimes difficult to know which is the devil’s side!) perhaps governmental intervention of any sort, like approving/denying trademarks on their opportunistic disposition is a capricious exercise, and the free market should determine whether the enterprising endeavor is successful. If many consumers view these overtly prompt filers as opportunists, public disdain should serve as a deterrent to this practice, and the business simply wouldn’t be profitable. On the other hand, if there is a considerable demand for such goods in the market, isn’t catering to those demands by flooding the market just smart business sense? The line between enterprising and exploitative is admittedly hazy, but perhaps as good ol’ Uncle Scrooge would say, ‘If you err, err on the side of money’?
Trademarking tragedy stands at the unique intersection of morality, trademark law, and business, and due to its location, the path towards regulating (or not regulating) it must be traversed with caution. It is imperative that legislatures all over the world address the overarching concerns associated with the “tragedy trademark” and address it immediately.