Am I a Trademark?

In 2012, Beyonce and Jay-Z[i], applied to register the name of their baby, Blue Ivy Carter, as a trademark for a whole bunch of stuff.[ii] That application died in 2016 because they never showed the name was being used as a trademark. They filed a second application which is alive as of this writing but still requires them to show use of the name as a trademark before getting a registration. At this point Blue Ivy Carter is still just a name of a person and not a trademark.

At what point does someone’s name become a trademark?[iii] What’s the difference between trademark rights and fame, popularity, and influence?

To oversimplify, it’s whether you can fill in this blank:

Janelle just had some [insert your name] brand ________________!

If you can’t fill in the blank line with something, your name isn’t a trademark.

If you can get a registration, should you? It probably isn’t necessary but some people do it anyway:

  • Harpo, Inc. has lots of registered trademarks for OPRAH® and a bunch more applications pending.
  • Morgan Freeman registered MORGAN FREEMAN® for “Entertainment services . . . ” in 2004.
  • DENZEL WASHINGTON is not a registered trademark.
  • There was only one registration for MICHAEL JACKSON® before his death: “sound recordings . . . and motion picture films featuring music and entertainment”
  • Eddie Murphy registered EDDIE MURPHY in 2002 but let the registration die in 2013.

Names can be trademarks but you need more than just fame to get there.

Thanks to Aaron A. for asking the question that led to this post.


[i] The owner of the application was actually BGK Trademark Holdings, LLC.

[ii] Fragrances, cosmetics, skin care products, namely, non-medicated skin care preparations, non-medicated skin care creams and lotions, namely, body cream, hand cream, skin lotion, body lotions, skin moisturizers, skin emollient, skin cleansing creams, skin cleansing lotions, all for adults and infants; hair care products, namely, non-medicated hair care preparations, non-medicated hair gel, shampoo, conditioner, hair mousse, hair oils, hair pomades, hair spray; Metal key chains and metal key rings; DVDs, CDs, and audio and visual sound recordings featuring musical performances; musical sound recordings; computer application software for mobile phones, portable media players, and handheld computers for use in downloading music, ring tones and video games; handheld and mobile digital electronic devices, namely, tablet PCs, cellular phones, laptops, portable media players, handheld computers; cases and covers for mobile phones and mobile digital electronic devices, namely, laptops, cell phones, radio pagers, mobile computers; downloadable web-based application software in the nature of a mobile application downloadable to handheld and mobile digital electronic devices for use in downloading music, ring tones and video games; decorative magnets, eyewear, eyeglass cases; computer bags; graduated glassware; Baby teething rings; Baby carriages, baby strollers; Books in the field of music, motion pictures, musical performers; photographs; posters; baby books; stickers; print materials, namely, art prints, color prints, concert programs, calendars, pens, post cards; gift bags; paper flags; trading cards; paper baby bibs; Bags, namely, tote bags, beach bags, handbags, diaper bags, baby carriers worn on the body, pouch baby carriers, luggage; small leather goods, namely, leather cases, leather bags and wallets, leather purses, leather billfolds, leather key chains, leather key cases; Plastic key chains and plastic key rings; small leather goods, namely, leather picture frames, leather key fobs, and leather key holders; plastic flags; vinyl banners, baby bouncers, baby changing mats, baby changing tables, high chairs for babies, playpens for babies; Mugs; beverage glassware; plastic water bottles sold empty; hair accessories, namely, hair combs; baby bathtubs; drinking cups for babies; Banners of cloth, nylon; flags, namely, cloth flags, nylon flags; towels; baby bedding, namely, bundle bags, swaddling blankets, crib bumpers, fitted crib sheets, crib skirts, crib blankets; baby blankets; Hair accessories, namely, hair ties, hair scrunchies, barrettes, hair bands, hair bows, hair clips, hair pins, hair ribbons, ponytail holders; novelty button; ; hair accessories, namely, electric hair-curlers, other than hand implements; Playing cards, balls, namely, basketballs, baseballs, footballs, kick balls, rubber balls, beach balls, golf balls, hand balls, tennis balls, racquet balls, soccer balls, sport balls; dolls, baby multiple activity toys, baby rattles, baby teething rings, baby swings; Product merchandising; online retail store services featuring music, musical recordings, motion pictures, clothing and clothing accessories, novelty items; Entertainment marketing services, namely, marketing, promotion and advertising for recording and performing artists; Entertainment services, namely, providing online video games, dance events by a recording artist, multimedia production services; Entertainment services in the nature of live musical performances; production of motion picture films, fan clubs.

[iii] This post is dealing with names of actual people, as opposed to names of characters people play. There was a post a few weeks ago on names like CAPTAIN KANGAROO.

NFTs and Copyright

When the NFT to Everydays — The First 5000 Days sold for $69.3 million, what, exactly, did the buyer buy? The right to print the work and hang it on their wall? The right to stop people from making copies of the digital file?

Nope.

Those rights are part of copyright and the NFT didn’t include ownership of the copyright.

Does this make your brain hurt?

It shouldn’t. You do ownership-without-copyright all the time when you buy music, movies, and books. Even in situations where you’re buying a one-of-a-kind physical object, the copyright and the object don’t necessarily travel together.

For example, if you buy a painting, you own the painting but you can’t sell prints because you don’t own the copyright.[i]

Selling an NFT to a creative digital work is like selling an original painting. NFTs make it possible to record and track ownership of digital art, which couldn’t reliably happen before. NFTs may become a great way for creatives to capture the value of the non-physical items they create.

Is there a way for non-creatives to make money by creating NFTs?

If, for example, you owned an unrestricted digital copy[ii] of Everydays — The First 5000 Days, could you create an NFT and sell that for millions of dollars? Very doubtful. The Mona Lisa is valued at over $800 million but prints go for about $10. An NFT of your digital copy is more like the $10 print.

NFTs are cool and new. Analogies to the physical world can help us understand what they are and are not.

Shout out to Cassandra G. for the suggestion that led to this post.

Featured image credit: © 2019 NFT MCH+ used under Creative Commons Attribution-Share Alike 4.0 International license via Wikimedia Commons.


[i] If the painting is old enough for the copyright to have expired, then you can make prints. That doesn’t mean you own the copyright, it just means there’s no copyright left. Sometimes art museums buy or license the copyright to a more recent piece of art so they can make and sell copies.

[ii] You don’t. Really. I promise you don’t. You also don’t have the right to create and sell an NFT with photos of paintings in museums. Even museums that allow photography almost always restrict photography to non-commercial uses. You could not legitimately create and sell an NFT for a photo of Van Gogh’s Starry Night that you took on your last visit to MoMA.