The first month of 2016 has already seen two very high-profile trademark disputes, both in the area of online videos. Recently it has come to light that Sony has tried to trademark the phrase “Let’s Play” for video game footage. For anyone unaware, “Let’s Play” has been in use by video creators for years and has evolved into its own genre, typically involving gameplay footage and the player’s own commentary on the game as it is played. Players frequently include the phrase in their video’s title using the video to introduce a new game to their viewers, showing their own first minutes playing the game or, if they have already been playing the game for a while, to showcase the features of the game to a wider audience. A YouTube search for the phrase “Let’s Play Minecraft” yields over eight million results, and Minecraft is far from the only game that the genre addresses. Adding nearly any video game title after the phrase “Let’s Play” will yield results in a similar vein.
Luckily for content creators everywhere, Sony has not gotten their trademark request approved, but they may yet. The request is held up at the United States Patent and Trademark Office because it is similar to another company’s already-registered mark. That company, whose mark is “Let’z Play,” is not using the phrase for the purpose of online video game footage, but it is so close Sony’s proposed mark that the USPTO has paused the process. Sony has until June to make its case or the registration will fail.
Sony isn’t the only one trying to corner an already-established video game genre, however. A YouTube channel called The Fine Bros is apparently trying to trademark so-called “reaction” videos: videos that show people reacting to an event or another video that they are being shown. Like the “Let’s Play” videos, reaction videos have been part of entertainment for many, many years. Remember Paranormal Activity, the wildly popular low-budget horror movie from 2007 that has since spawned several sequels? Part of the hype (and presumably the marketing strategy) surrounding the movie was the emergence of reaction shots of people watching the film in theatres. The audience screamed, some of them spilled their popcorn, and Paranormal Activity grossed over $100 million. The videos showed other potential moviegoers just how scary (and entertaining) the movie was, but even in 2007 these videos were nothing new.
The Fine Bros, in fact, already have two registered trademarks: “Elders React” and “Celebrities React”. Consider for a moment the television show Punk’d, which began its run in 2003. While not exactly the same, the series did show reactions of celebrities during and after they had been pranked by the cast, and the show is more than a decade old at this point.
Both the Sony and Fine Bros trademark controversies have something critical in common: none of the registrations have been outright denied. As mentioned, Sony’s trademark is only being held up because of its similarity to another mark, and two of The Fine Bros’ marks were registered and approved already. According to a prominent intellectual property lawyer, Ryan Morrison, the problem with approving these marks as protectable IP is that the marks are “generic” and “descriptive” of the service they reference. For instance, businesses that sell soda cannot trademark the word “Soda” as their own. They, and everyone else, are allowed to use the word to describe the product. Allowing only one company to use the word would be a terrible restriction on the market and speech in general.
Marks that are found to be “generic” do not qualify for protection. Marks that are found to be “Descriptive” might gain protection in some instances if the brand name has become associated with only that company’s particular products.
This is a dangerous trend in the online world, and the way trademarks are filed exacerbates the problem. According to Mr. Morrison, “[some attorneys] will just throw a bunch of marks in and see what sticks. If they get bounced back, no big deal, a bunch of the others will go through.”
Many companies may begin trying to hem in competitors and the video creator public at large by trademarking terms that have already been in use for years, which would stifle expression and content creation within those genres.
This course of events may not come to pass, and I would have laughed it off a month ago – but in the space of a relatively short time, two of these stories have hit, and I’m sure we’ll see a third one a lot sooner than we would like.