Katy Perry lawyers try again, file trademark claim for Left Shark

10 Comments

What happens when the unstoppable force of an internet meme meets the immovable object of a celebrity’s lawyers? We could find out as Katy Perry lawyers try anew to claim the flash-in-the-pan phenomenon known as Left Shark.

In the latest turn of fate for Left Shark, who came to fame for his drunken dance during the Super Bowl, Perry’s lawyers have filed for trademarks on “left shark,” “right shark,” “drunk shark” and, inexplicably, “basking shark.”

The new applications come after the lawyers fell on their faces trying to assert copyright claims against Shapeways, a small 3D printing company where model designer Fernando Sosa had been selling a replica of Left Shark.

The problem, as copyright scholars pointed out, was that costumes can’t really be copyrighted and, in any case, there was no evidence the singer owned rights to Left Shark in the first place.

Hence, the new trademark claims. Unlike copyright, which covers artistic works, trademarks are intended to protect brands and denote original ownership. There’s more than one way to own a shark, goes the thinking of Perry’s lawyers.

Left Shark, as it appeared Thursday on Thingiverse.

Left Shark, as it appeared Thursday on Thingiverse.

Alas, they appear set to go 0-for-2 in their intellectual property adventures since, in the words of lawyer Roberto Ledesma, it’s not easy to own an an internet meme.

“It arrived out of something that came out of the internet. What is her claim to ownership of the mark?” said Ledesma, a former trademark examiner, by phone.

He said the Trademark Office may reject the marks on “failure to function” grounds — meaning it doesn’t do what a trademark is supposed to do, which is point to a source of origin. Ledesma says the issue is novel, but similar problems have arisen when people have tried to claim rallying cries like”Boston Strong” or “Je Suis Charlie.”

That doesn’t mean, however, that Perry’s lawyers can’t prevail. Ledesma points out that they may simply use the trademark applications (even if they are doomed) to bully companies like Shapeways and Etsy where artists to sell their wares.

Perhaps it is time for Perry to step in and put her lawyers back in their tanks, and give the money she has been spending on them to a shark protection foundation.

This story was updated at 9:45am ET to correct a misspelling of Roberto Ledesma’s name. Also an earlier version incorrectly suggested that Ledesma said it is not possible to own an internet meme.

10 Comments

JimD

Somebody in the Perry camp smells $$$$ from Left Sharkâ„¢ toys and tchotchkes. The dopes don’t realize that their lawyers will still be dickering long after the meme has passed into history (which should be in another month or two.)

Glenn

Could it be said that Katy’s lawyers have jumped the left shark? No? Is this thing on?

guest

Too late. It was in the public domain the second the lights went up. And if anything, the NFL probably owns it.

JimD

“Public domain” isn’t relevant to trademarks… in fact, you can’t even get a trademark if you aren’t using it in public.
The problem is that neither Perry nor the NFL has actually used “Left Shark” as a mark. They’re probably praying that nobody else filed for it before they did, because they have no priority claim.

exhibit44

So there’s a concession that they didn’t trademark the character. But someone else is already trading on the character, so they can trademark it. I smell settlement from Perry and Co.

Madlyb

The lawyers don’t care because they get paid either way. So, even if they know they are going down a dead-end, they will happily do it…

…and bill by the hour while they do it.

Political Sculptor

agreed.. yet every artist and small business they have attacked lost money, time and effort. Which is very costly for a small business.

John

They don’t care about winning until they lose so often nobody hires them.

the dude

Actually, I’d be embarrassed as hell if I were them. They obviously don’t know s**t about copyright law, And they’re probably going down on the trademark claim (and what’s to stop the guy who’s already selling from filing his own competing TM application)?

More importantly, who gives f**k anymore? This was hot the week after the superbowl. Now it’s as cold as mama bear’s porridge.

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