ieExplains: How the TikToker behind the 'very demure, very mindful' trend lost out
With Creator Lebron On Jimmy Guillermo Talk Kimmel Rodriguez Live, Tiktok Jools Show Personality
You never know what is going to go viral online and that was certainly the case with creator Jools Lebron whose TikTok video — where she coined the phrase “very demure, very mindful” — spread rapidly across the platform.
A viral TikTok video can land a creator with a nice payday from the platform, but there are always business opportunities offline as well. However, Ms Lebron did not act quickly enough and someone else filed a trademark for “very demure, very mindful”.
This means she will not be able to use the phrase she popularised in any other commercial opportunities she may want to pursue. Unfortunately for her, trademark rules are different to copyright and this has left her with very few options.
Simply put, a trademark is a business's branding or the means by which customers identify a good or service that comes from a certain company. The trademark is often the company’s logo, like Nike’s Swoosh, or the company’s name like Google. It is also often a combination of the two.
When applying for a trademark, you must categorise which area your trademark will be operating in. Under the Nice Agreement, concerning the international classification of goods and services, there are 34 classes of goods and 11 classes of services.
This registration defines the extent of the protection afforded by that registration.
So that means if Ms Lebron wanted to launch a clothing brand under a trademark, she would have to register it in that class and if she wanted to launch a coffee brand under the same trademark, she would also have to register it in a different class.
In Ireland, you can register your trademark through the Intellectual Property Office of Ireland and it will cost €177. Or to protect the trademark across the EU, a business can register it with the European Union Intellectual Property Office.
As Ms Lebron is located in the US, her first stop should have been the US Patent and Trademark Office — registering a trademark there would cost $350.
Additional fees will apply depending on how many classes the trademark is being registered to.
Rules around copyright and trademarks overlap but are two separate issues. Copyright is a right given to authors or creators to protect their creative works and prevent others from using it without their expressed permission.
Unlike trademarks, where you have to apply to receive protections, copyright is an automatic right and there is no official registration system for copyright owners. The rights take effect as soon as the creative work is produced on paper, film, or other forms of media, including digital. Among the works covered by copyright include music, books, films, paintings, evening maps, computer programmes as well as databases.
One thing that copyright does not protect is ideas, which also includes phrases. This means Ms Lebron's “very demure, very mindful” phrase would not get any copyright protection, but the TikTok video in which she says it would, as that is an example of an author’s work produced on a digital medium.
In Ireland, copyright expires 70 years after the death of the author, after which point it enters into the public domain. Irishman Bram Stoker’s is an example of a literary work that has now entered the public domain and as such anyone can reproduce, remake, or adapt the work how they see fit.
One of the main differences between copyright and trademarks is trademarks can last indefinitely as long as the business continues to enforce its trademark rights and renews its application for the trademark, which is every 10 years in most jurisdictions.
However, copyright and trademarks can overlap and a logo can have protections of both providing its copyright protections have not lapsed.
One of the main issues with trademarks is that if someone infringes upon a business’s trademark, then it is up to that business to enforce its trademark protections, which could include litigation. If the trademark is not enforced, and its use becomes widespread, it could be argued the company has abandoned the trademark and as such it will no longer be protected.
One of the most famous examples of this is when McDonalds lost the use of the Big Mac trademark in the EU following a challenge by Supermacs. The European Court of Justice found McDonald’s "has not proved genuine use within a continuous period of five years in the EU in connection with certain goods and services".
Trademarks also do not protect the actual products themselves, just the associated marketing of the products — businesses seeking to protect the products themselves from being copied would need to file patents.
The problem for Ms Lebron comes down to the fact the phrase does not have automatic protections under copyright and she did not act quickly enough to secure trademark protections.
As the “very demure, very mindful” phrase is not subject to copyright protections, she now has very few options to get the trademark.
The true value of the trademark is yet to be seen and given it is now widely known that Ms Lebron does not own it herself, the value of it may be now worth less. So she could potentially work out a deal with the now trademark owner but outside of that she could be forced to just wait it out to see if the trademark is eventually abandoned.
Although at that point, it may not be worth anything at all.