Winter is Coming: A Game of Memes

We have written in our blog previously about how to go about dealing with individuals or businesses who use your trade marks without permission, but what of businesses that parody your brand?

This is a tricky one to deal with and it’s something that can really niggle brands particularly if the person doing the parodying is an individual they do not want to be associated with or a business they are in competition with. While trade mark law prohibits misuse of a mark that takes unfair advantage, parody is permitted under UK copyright law (see Briffa Blog) as it is in the EU and US and that means that taking legal action to prevent it is not something that you can just do and hope to be successful with. If it is a trade mark that is parodied then parody may be raised as a defence to an infringement action. This means for example that Netflix who have the strap line Netflix and Chills could not sue a community of festival and rave lovers using the mark Ketflix and Pills even though there is a clear business angle to Ketflix and Pills’ activity.

A recent example of where the parody maker is an individual is the use of ‘Sanctions are coming’ in a tweet headline used by President Trump announcing his decision to re-impose sanctions on Iran. The parody of ‘Winter is Coming’ from the HBO series Game of Thrones used a similar font to that of the original over a picture of himself looking like he means business. Now this particular mark and series have been fertile material for memes. It is inevitable when your brand has so much popular appeal that others will use it in this way and a parody does not work unless it takes at least enough for the original work for meme to be understood. HBO took particular exception here however as it was President Trump using their brand. HBO have expressed their objection on social media. They took a light-hearted approach tweeting ‘How do you say trade mark issue in Dothraki?’ And also said they did not agree to the use of their brand for political purposes.

With an individual with such a huge Twitter following as Trump HBO would have calculated it was worth stating their position and trying to disassociate themselves from the tweet but beyond that the matter should probably be left to die. Alternatively, could the meme be turned against the individual? It was first tweeted and meant to be understood as a reference to re-imposition of sanctions. Could it be used by others following the result of the US mid-term elections or if the President starts running into other types of trouble during his presidency? What would that be called? And would the President have a copyright action against anyone who tried it?

Written by Margaret Briffa