Trademark Examiner Not Swayed By Katy Perry's Attempt To Trademark The Left Shark
from the shake-it-off dept
We’ve written a few times about the so-called left shark, the internet meme that took off after one of singer Katy Perry’s backup dancers (in a shark costume, naturally) looked a little “off” during her Super Bowl performance earlier this year. The internet went crazy and created all sorts of memes around “left shark.” A guy named Fernando Sosa started selling 3d printed Left Shark figurines — and then Perry’s lawyers freaked out and basically claimed ownership to all things “left shark.”
Thankfully, the guy selling those 3D printed left sharks, Fernando Sosa, was able to retain lawyer Chris Sprigman, who pointed out that there is no copyright in costume design. Soon after that, we noted a bizarre twist on the story, in that Perry’s legal team made a quick effort to go and trademark left shark, while (amazingly) using one of Sosa’s photos of his own 3D printed models as the photo they submitted showing what they were trademarking.
Either way, Perry’s legal team has been working on a few different trademarks related to “left shark” but apparently trademark examiner David Collier has some concerns about Perry’s trademarking attempt:
David Collier, the trademark examiner, isn’t yet impressed by the attempt to register the design, which, he wrote, “identifies only a particular character; it does not function as a service mark to identify and distinguish applicant?s services from those of others and to indicate the source of applicant?s services.”
In other words, there’s not enough evidence submitted yet that consumers look at “Left Shark” and think of a Katy Perry music performance.
The examiner also noted the differences between a photograph of Perry dancing with “Left Shark” and the drawing of “Left Shark” submitted as the design.
“Specifically, the [photograph] displays the mark as a stylized depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail,” he wrote. “The shark has five gills, a full mouth with teeth and round eyes with eyelids; however, the drawing displays the mark as a stylized depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the shark’s mouth appears without teeth; the shark also has oval eyes without eyelids.”
Of course, we feel obliged to go back to a point that Sprigman made early on in these discussions: while Perry may have had something to do with creating Left Shark, she had basically nothing to do with the reasons why Left Shark became “Left Shark” rather than “random dancing character in a big show that everyone forgets soon after.” As Sprigman noted:
No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark?s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn?t really about Katy Perry.
So if anyone deserves a trademark on it, it should be “the internet.” Or we can just make this simple and not trademark it at all.