Trade mark battles: “100% that bitch”

In 2017, British Singer Mina Lioness tweeted “I did a DNA test and found out I’m 100% that bitch.” It went viral. Seven months later, American singer Lizzo released her song ‘Truth Hurts’ which features the same memorable phrase.

The two singers got into a spat about it on Twitter back in 2018, but it didn’t get much attention. However, matter has now flared back up again in 2019 because Lizzo (now an extremely successful artist) has filed a trade mark application for the phrase “100% that bitch” with the US Patents and Trademarks Office (USPTO).

Mina Lioness is more than a little annoyed and feels that Lizzo has stolen her idea (she tweeted “Now everyone believes those were your words, when in fact they were mine. My creativity, my wit and my comedy”).

Briffa comment

There are a few interesting points to take away from the “100% that bitch” saga:

First, Lizzo may well have stolen Mina Lioness’s ‘idea’, but in most cases stealing an idea is not unlawful because generally speaking intellectual property law does not protect concepts or ideas in an abstract sense.

Second, in order to establish a legal claim Mina Lioness would need to establish that more than a mere idea was taken. She could potentially argue that she had copyright in the full phrase “I did a DNA test and found out I’m 100% that bitch” and that the copyright in the phrase predates the trade mark application (although this would most likely be a difficult claim because generally speaking copyright does not protect very short phrases). She could also potentially argue that she had unregistered trade mark rights in the phrase if she could establish that she had “goodwill” in the phrase (although this would require evidence of commercialisation and the Tweet alone would most likely not suffice). And obviously she could also have filed a trade mark application, as Lizzo ultimately did, claiming monopoly control over the phrase in relation to the provision of certain goods and services.

Third, as this case shows, acting fast is important. If Mina Lioness had filed a trade mark application before Lizzo did, she would have had the exclusive right to commercialise the phrase in relation to the designated goods/services and territories. Trade mark rights go to the person who is the first to file!

Fourth, trade mark rights are subject to various limitations. The fact that Lizzo has obtained trade mark protection the phrase “100% that bitch” in relation to goods in classes 9 (music) and 25 (clothing) and services in class 41 (entertainment) would not prevent Mina Lioness from seeking trade mark protection for the same phrase in relation to different goods and services. Similarly, the fact that Lizzo has obtained trade mark protection for the phrase in the US would not prevent Mina Lioness from seeking trade mark protection for the same phrase in any other territory (e.g. the UK or the EU). In fact obtaining the trade mark in another territory which is commercial important for Lizzo could give Mina Lioness leverage to negotiate a coexistence arrangement or even a royalty/revenue sharing arrangement.

Finally, the reality of life in 2019 is that everyone is an author and an artist and a photographer and a videographer and a publisher. People of all ages from all sorts of places create new content every minute and therefore, whilst technically people may own copyright and other intellectual property rights in the material they create and publish, the reality is that content will be shared widely and rapidly online and if content creators want to exercise any meaningful sort of monopoly control over their content they must: (1) be diligent (e.g. by responding to infringers who reproduce or adapt content without permission); act fast (e.g. by filing trade mark applications as soon as possible where appropriate); and (c) have at least some funding available, because protection, commercialise and enforcing your intellectual property rights is not free (although Briffa can help you to do that in a cost-efficient way!).

Briffa are experts in all aspects of intellectual property law and practice and specialise in formulating bespoke and cost-efficient strategies and solutions for their clients. If you would like to book a meeting with one of our lawyers, please get in touch on 020 7096 2779 or info@briffa.com.

Written by Éamon Chawke, Solicitor