The US President Donal Trump had twitted an image of himself accompanied by the caption ‘Sanctions are Coming’. Who would know that a simple image can get him into trouble?
It is not possible to understand the implications of IP with this tweet if they were not familiar with the successful HBO TV series Game of Thrones and its popular phrase ‘Winter is Coming’. It has gained so much popularity that it has become a trade mark.
The phrase has been registered as a word mark by HBO in US and EU for certain goods and services in Class 25, 35 and 41.
The issue with this tweet is that the image of Trump in the tweet is in the style of Game of Thrones imagery. The gravitas of the image and the font used for the letters are same as that of the Game of Thrones images.
HBO immediately reacted to the tweet, asking: How do you say trademark misuse in Dothraki? For those who are not familiar with Game of Thrones, Dothraki language is the fictional language spoken in the series.
Under the US law, trade mark law provides exception for parodies. In a recent case, Louis Vitton filed a suit against My Other Bag over their canvas bags carrying replicas of Vitton patterns. The US District Court laid down a test to determine parody in which the key question to ask is whether the kind of association a defendant creates is likely to impair the distinctiveness of plaintiff’s mark.
Therefore, it is now to be considered whether the Donald Trump’s tweet image containing ‘Sanctions are Coming’ may be considered as: (1) use in the course of trade of the HBO trade mark, and (2) a use that affects the functions of the 'Winter is Coming' trade mark.
The key question here is whether a certain font can be protected by copyright law. For this purpose, we have to determine the questions pertaining to work and originality.
It is now to be determined whether certain font can be considered a work and whether each letter is an independent work.
Originality is the most crucial element in copyright under both US law and EU law. Under US law, there is a requirement of modicum of creativity and under the EU law, the work must be the result of 'free and creative choices', display the 'personal touch' of the author, and require more than just 'skill, labour or effort'.
Who knew that a simple tweet can have serious IP implications? Lets wait to see how protective HBO is about its own IP.
Category : SOCIAL MEDIA