Jameson Nowlan
Last month, Jools Lebron (@joolieannie on Tik Tok) posted a video titled “How to be demure and modest and respectful at the workplace” featuring her now signature phrase “Very Demure, Very Mindful.”
This short comedic video emphasized mindfulness and modesty in women’s workplace attire. A month later, the video had amassed over 51.9 million views and Jools was featured on major network television shows including Good Morning America and Jimmy Kimmel Live![1] However, her quick fame took a turn for the worse. In a now deleted video from August 24th, only a few short weeks following her viral moment, Jools posted a video of her lying down out of frame, crying with the title “When you didn’t trademark fast enough.”
Apparently, Jools initiated the process to create and sell merch with her famous tagline, but quickly discovered an individual named Jefferson Bates already applied to register the trademark. In her lament, Jools describes wanting to support her family and pay for her transition, but notes “I just feel like I dropped the ball… someone else has it now.”
Does Jools have a legal remedy?
Trademark Law
In contrast to patent and copyright law, which are governed by Article I Section 8 Clause of the Constitution, trademark law is governed by a separate regime: the commerce clause.[2]
Trademarks function to distinguish services, certify origin or characteristics, or provide a seal of approval by a central organization with the ultimate goal of consumer protection.[3] If two similar marks create a likelihood of confusion for consumers, there is potential for an infringement action invalidating the copycat mark.[4]
Due to the emphasis on consumer perception and experience, trademark protection is linked to actual use in commerce, not purely registration. Registration may provide access to more rights and different standards of review for infringement, but is not per se required for ownership.[5]
Trademark Trolls
The actions of Jefferson Bates highlight the growing prevalence of “trademark trolls” or “an entity or individual that maliciously uses or registers a mark to extort money from the rightful owner of a similar or identical mark” according to The Trademark Lawyer.[6] These “trolls” often use their registration to threaten litigation or charge exorbitant fees to sell the trademark back. While the fundamentals of trademark law may limit abuse, the proliferation of the digital marketplace and the ease at which trolls could satisfy the “use in commerce” or “intent to use” requirement suggests a cause for concern.[7]
Be “Mindful” with Trademark
In the case of Jools, her now iconic catch phrase will likely face limited obstacles on the path to protection. Armed with a new legal team, she has favorable conditions to register the mark as her own, without interference by a “trademark troll”. Yet, this viral moment should serve as a reminder of the precarious nature of trademark ownership and registration in an ever-changing online era.
[1] Good Morning America, ‘Demure’ diva Jools Lebron talks rise to Tiktok fame, YouTube (Oct. 6, 2024), https://www.youtube.com/watch?v=CYx8R3herVk [https://perma.cc/ZJR8-MKYG] [https://web.archive.org/web/20241007000243/https://www.youtube.com/watch?v=CYx8R3herVk%2A].; Jimmy Kimmel Live, Guest Host RuPaul on DNC, Trump’s Vision for America, Very Demure TikToker Jools Lebron & Gayer News, YouTube (Oct, 6, 2024), https://www.youtube.com/watch?v=XKqr8kNr1Us [https://perma.cc/8FVT-HELR] [https://web.archive.org/web/20241007000943/https://www.youtube.com/watch?v=XKqr8kNr1Us].
[2] U.S. Const., Art. I, §8, cl. 8
[3] United States Patent and Trademark Office, What is a Trademark? https://www.uspto.gov/trademarks/basics/what-trademark#:~:text=A%20trademark%3A,guard%20against%20counterfeiting%20and%20fraud [https://perma.cc/QLY5-LDEF] [https://web.archive.org/web/20241007002058/https://www.uspto.gov/trademarks/basics/what-trademark].
[4] Shyamkrishna Balganesh et al., Intellectual Property in the New Technological Age: 2021, Volume II: Copyrights, Trademarks & State IP Protections 1042 (2021).
[5] Id. at 1018.
[6] Mudit Kaushik, The dark side of trademarks: confronting the troll menace, The Trademark Lawyer https://trademarklawyermagazine.com/the-dark-side-of-trademarks-confronting-the-troll-menace/ [https://perma.cc/3MQ5-CGZV] [https://web.archive.org/web/20241007001327/https://trademarklawyermagazine.com/the-dark-side-of-trademarks-confronting-the-troll-menace/].
[7] United States Patent and Trademark Office, Application filing basis (last visited Oct. 15, 2024), https://www.uspto.gov/trademarks/basics/application-filing-basis [https://perma.cc/KN7X-FR5J] [https://web.archive.org/web/20241007001843/https://www.uspto.gov/trademarks/basics/application-filing-basis].