Can you trademark a joke?

Yes, you can trademark a joke. You can trademark a joke, so long as you are using that joke as your brand name or slogan. Trademarks protect the materials that are being used to promote and distinguish products or services.

This information was provided by our founding attorney, Xavier Morales, Esq. 

If you wish to trademark a joke, you must prove that the joke has taken on an association with your products or services. You will also need to demonstrate that the joke is distinct enough to qualify for a trademark.

If you would like to trademark a joke for use as a name or slogan, you should first ensure that there is not an existing trademark for that joke. We recommend that you retain the services of a knowledgeable trademark attorney for the purposes of performing a thorough trademark search, as the process is quite difficult.

As application fees for trademark registrations are non-refundable, we advise that you consult with one of our attorneys before you attempt the process on your own.

Copyright Law and Trademark Law in Comedy

The realm of comedy often brings to the fore the distinction between copyright law and trademark law. While copyright law covers original jokes as creative works, providing a mechanism against copyright infringement, trademark law focuses on the use of such jokes in the commercial domain to identify the source of goods or services, potentially involving trademark infringement issues.

There has been a recent unique case where trademark law and the use of a trademark in a commercial domain have come into question. Steve Elster, a California attorney is looking to trademark the phrase "Trump too small" to be printed on merchandise such as T-shirts. The original phrase was a joke used by Sen. Marco Rubio, R-Fla. a Replublican presidential candidate during the 2016 campaign. The joke was "And you know what they say about guys with small hands, you can't trust 'em!” - referring to opponent Donald Trump.

The case went to the Supreme Court and brought up the conflict – can Federal Law protect the name of a living individual from being made the subject of a trademark or does the First Amendment protection of free speech make this an acceptable registration? Though the USPTO originally rejected the trademark, the decision is yet to be made in court.

The Challenge of Joke Theft in Stand-Up Comedy

Joke theft, a contentious issue among stand-up comedians, highlights the complexities of protecting original jokes. Stand-up comedy, reliant on the originality and creativity of the comedy writer, faces challenges in safeguarding protectable expressions within comedy routines.

Legal action in this sphere can be intricate, involving assessments of copyright infringement alongside the nuances of trademark law when a joke becomes synonymous with a particular artist or brand. It's often difficult to prove ownership of a joke, and the expense of doing so means that lawsuits for these kinds of cases are low.

There is a particularly prevalent case of joke theft that shows the difficulties of trademarking the subject. In 2015 Conan O'Brien was sued for using jokes written by comedy writer, Alex Kaseberg. Kaseberg is most notably known for writing jokes for Jay Leno and also has a blog post where he includes comedic matters. Kase claims that O'Brien and his team of writers stole 5 jokes that were written by him on his blog and Twitter account and used them on his late-night TV show. After four years and countless legal bills, O'Brien and Kaseberg settled out of court before it went to federal court.

Originality and Intellectual Property in Comedy

The essence of a joke's power often lies in its originality. For stand-up comedians and comedy writers, the intersection of intellectual property laws offers a mixed bag of tools to protect their content. Whether it's a blog, speech, or comedy routine, the core elements of their work hinge on being recognized as original properties. This recognition not only bolsters their legal standing in cases of dispute but also enhances their value to audiences and platforms alike.

However, this can not be said in writer, producer, and stand-up comedian Dan Atkinson's case. It may not be known but Atkinson is responsible for coining the "Wagatha Christie" phrase in the case of Rebekah Vardy vs Coleen Rooney.

Though there is evidence of Atkinson posting the pun online, it is Rebekah Vardy who has trademarked the phrase. Vardy has successfully trademarked "Wagatha Christie" against a wide range of products including dolls clothes, stationary, kitchenware, and homeware.

Atkinson notes in his article that while he has evidence that he was the writer of the phrase, it would not be worth spending the money to go to court about it.

The Punchline

Trademarking a joke presents a unique intersection of copyright and trademark law, especially relevant for content creators in the comedy sector. While copyright law offers protection over the creation of original jokes, trademark law allows for the branding and commercial differentiation of these jokes when used as slogans or names.

Consulting with a trademark attorney experienced in both trademark and copyright issues is crucial for navigators in this intellectual landscape, ensuring that comedians and writers can protect their work while understanding the limitations and possibilities within legal frameworks.

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Xavier Morales, Esq.

About the Author

Xavier Morales, Esq.

Mr. Morales founded his trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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