So, you had a video go viral and it had a very specific phrase, like “Hawk Tuah on that thang” or “very demure, very mindful.”
Sure, maybe a viral phrase isn’t the most sophisticated form of humor, and maybe the trend doesn’t promise long-term relevance or a particularly enduring appeal. But viral phrases can lead to a huge influx of brand deals and, if you’re smart about it, merchandise sales.
Take Jools Lebron, the TikTok creator who popularized the viral phrase “very demure, very mindful.” Because of the phrase’s success, she could finance her transition. She went on Jimmy Kimmel Live!, and she made videos with Verizon and Southwest Airlines. But, a few days after the phrase took off, a Washington State man named Jefferson Bates filed to trademark it himself, despite it not actually being his phrase. According to legal documents obtained by NBC News and TMZ, he didn’t even name Lebron in the application.
“I’ve just invested so much money and time into this,” Lebron said in a TikTok video that Pop Crave posted on X before Lebron deleted it. “And I feel like I did it wrong. I feel like I didn’t try hard enough. I wanted this to do so much for my family and provide for my transition, and I just feel like I dropped the ball. Like, I feel like I fucked up, and someone else has it now. I don’t even know what I could’ve done better because I didn’t have the resources.”
A few hours later, Lebron dropped another video saying that she “got it handled” on “the trademark front.”
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“I’m gonna leave it at that,” she said. “We got it handled. Mama got a team now. It’s getting handled. I appreciate you guys tagging me, I appreciate all of the mentions, it’s getting handled. Keep an eye out.”
It’s unclear what exactly happened with that specific trademark suit, but it’s clear that if you have a phrase go viral, work on that trademark asap. Josh Gerben, LegalShield Provider Attorney and Founding Partner at Gerben Perrott PLLC told Mashable that there are “several legal grounds” that would likely leave Bates without the trademark.
“That said, this is an important lesson that filing trademark applications as early as possible can avoid the potential for costly legal battles,” Gerben said.
Trademarking your phrase — which the U.S. Patent and Trademark Office describes as “a group of words that are used together in a fixed expression” — allows you a few rights: it protects your intellectual property, it gives you exclusive rights to use that phrase in commerce, it helps you build a brand around the phrase, it allows you to license it for advertising campaigns which will help you potentially earn royalties, and it gives you a legal basis to stop other people from using the phrase without your permission.
“Branding is at the core of every influencer’s success,” Heidy Vaquerano, a partner at Fox Rothschild in Los Angeles, told Mashable over email.
If you want to trademark your phrase, start by searching USTPO to make sure no one else has trademarked it. Then, determine the category you want to register the phrase, like on merchandise, in advertising, as a brand name, or another category. After you’ve decided that, you’ll want to file a trademark application with the USPTO. They’ll ask a bunch of questions about the phrase and how you want to use it, and you’ll probably have to pay some fees. The USPTO will review your application, which might take a few months, and then you’ll be approved or denied.
“We always suggest that an influencer consult with an IP attorney with respect to their overall branding,” Vaquerano said. “Jools may have become famous for the viral phase, but she should also consider looking at registering any other unique branding marks/phrases that she uses as it is important to protect her newfound popularity.”