Can You Trademark Movie Titles?
Can films get trademark protection if the film is not part of a bigger series?
Can a movie be, in and of itself, a brand?
In an interesting intellectual property twist, books that are not part of a series cannot be protected under trademark law.
Does the same apply to movies that do not have sequels?
What about movies that were adapted from some other form of intellectual property, like a book?
To try to answer these question, we looked at recent Academy Award nominees to see if they had trademark protection. We figured this would be the best way to see high profile films that weren’t sequels, part of an extended universe, and normally some standalone in some way. We took a look at some smaller dramas too, to test our theory about trademark protection. So, what do you think? Can these film names be protected under trademark law?
What Does Someone Usually Trademark?
As a quick refresher, trademarks protect words, phrases, symbols, or designs that identify a good or service. Trademark protection really runs the gamut of what could be protected. Even sounds can be protected by trademark law if a sound serves as a shorthand to help someone identify a source. (Think of the coin sound in Super Mario Bros., or an insurance jingle.) This helps an owner protect how a word or phrase (or whatever the case might be) is used with respect to a specific set of goods or services.
Said another way, think of trademarks as a form of quality control. Seeing a name with a good (shoes) or a service (cobbler) sets an expectation. You can probably expect a certain quality level, or a degree of service, when interacting with certain brand names.
In that sense, it makes sense that a multi-billion-dollar industry would want to protect what they put out into the world. However, there are limitations on how far that can extend. For example, there are common film titles that might not rise to being a “brand”, or words that other people might need to be able to describe their films. This is a common basis for denying trademark protection called “descriptiveness.” One way descriptiveness comes up is if the name is a word someone else might need to describe their own goods or services. This makes a word “nondistinctive” and unregistrable.
What Types of Movies Are Protected under Trademark Law?
Doing a search for the last few best picture winners, like CODA, Nomadland, Parasite, Green Book, The Shape of Water, Moonlight, Spotlight, showed that there was not much in terms of trademark filings for those titles in the entertainment industry. In fact, there was a slight uptick in unrelated filings with similar names around the same time those films were released. Inspiration strikes?
After striking out searching for registrations for some best picture winners, we went where anyone else would go: looking at bigger franchises to see if they had any luck. Fast & Furious Presents: Hobbs & Shaw showed that single titles in a franchise could not be protected under trademark law. Maybe Universal argued that this was the latest expansion of the Furious-verse, where Mr. Johnson and Mr. Statham’s team-up would lead to another bevy of extended universe hijinks?
Unfortunately, the United States Patent & Trademark Office (USPTO) had other plans: trademark registration was refused because it was for a title of a single work. Filed in 2019, maybe it was too soon to file.
Can Single Titles Be Protected under Trademark Law?
In its original refusal, the USPTO said “registration is refused because the applied-for mark, as used on the specimen of record, is used only as the title of a single creative work, namely, the title of a specific film; 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.” They recommended that Universal try again later, or “submitting evidence that the applied-for mark is used to identify a series, rather than a single work.” The title of a single creative work, they said, was not registrable on any of the Registers available with the USPTO.
Does this mean other franchises are able to protect their brands? Yes, with the caveat above – it must be part of a series to get trademark protection. For example, The Lord of the Rings, Toy Story, and Jaws (did you know there was more than 1?), all have trademark registrations relating to film or entertainment services. It helps that most of these also have merchandising efforts to help support these film franchises and keep their memory alive. Though Top Gun originally abandoned its trademark application in the early 90s, maybe it could revisit now that there’s a bona fide sequel out in the world?
There is another conversation entirely for the studios behind the films themselves. For example, A24, Sony Pictures Classics, 20th Century Fox, Pixar, Disney, Universal…all have trademark registrations for their studio names. These studios build their own reputations – you know the kind of movie to expect when you see something from Pixar, for example – that is protectable under trademark law.
And the Award Goes To…
A lot goes into making a film reach the big screen. There are so many different types of intellectual property involved in the creation of a film – from copyright (for the creative works) to patents (inventions made to push film techniques forward) and everything in between. While we sit back and celebrate the magic of movie-making, let’s take a moment to think about the films that have become brands and enriched our lives. And the award for best film goes to…
While we wait for the awards ceremony to start, why not schedule a complimentary consultation with Wilson Dutra Innovation Law today to talk all things branding?
