If you have any connection to today’s pop culture trends, you should understand how viral certain trends can be on social media platforms. For example, step into a nightclub when a particular song comes on and the entire dance floor is moving in synchronicity during a specific hook of a song. Currently, everyone has a great need to eat an entire cucumber and grocery stores are pivoting their produce aisles to facilitate this trend. A few months ago, apparently satisfying your extreme thirst at 3am could only be achieved with making a bowl of hwachae. IFYKYK. Dance moves and recipes are common content that can go viral in the social media world.
Catchphrases can also go viral. This is where Jools Lebron enters the chat. Jools Lebron is a social media influencer who has 2.1 million followers and 114.4 million likes. On August 5, 2024, Jools posted a TikTok video providing commentary on how to apply makeup when going to work. The ethos of the post was that makeup should be applied in a way that is: mindful, demure, cutesy. Jool’s post and the soundtrack of the demure catchphrase has gone viral. Within a month of publishing the post, it has generated 4.6 million likes, 21,500 comments and been shared close to 71,200 times, and counting. The catchphrase became a soundtrack which was then transposed on to other users of TikTok for them to create their own visuals using Jools’ soundtrack. As of August 27, 2024, the soundtrack has been used in 85,000 videos. The reach has been explosively viral. This the dream of content creators, and brands looking to ride that viral wave.
The basic symbiotic construct of the relationship between content creators and social media platforms is to foster this type of viral market penetration. With market awareness comes opportunities in the marketplace to monetize the creative asset. Content creators are well served by ensuring that they are asserting control and ownership over their creative assets by utilizing intellectual property laws, licensing and contract law to protect and enforce their commercial opportunities. If they do not, others will. This is what has happened to Jools.
Although Jools’ bio states “Miss Demure” and the viral video has been pinned on Jools’ account, a third party has swooped in to try to formalize protection for a confusingly similar trademark. An individual based out of Washington filed a US trademark application for VERY DEMURE…VERY MINDFUL on August 20, 2024 in association with “advertising, marketing and promotional services related to all industries for the purpose of facilitating networking and socializing opportunities for business purposes”. The trademark, services listed in the application and timing are uncanny. It smells like a brand troll and puts Jools at somewhat of a disadvantage. But not entirely.
The problem with not being strategic is that Jools has to simultaneously take proactive and reactive measures. The proactive approach that Jools should have undertaken once there was a sense that the post was going viral was to a) obtain copyright protection for the viral video content, b) to file a trademark application for catchphrase and c) control third party use of the catchphrase through written contracts, including all licensing opportunities that may be associated with the catchphrase. This is still an option and Jools would be well advised to start these processes. From a reactive standpoint, the third party trademark application can be opposed at a particular stage in the trademark registration process. In addition, swiftly issuing a demand letter to the unauthorized applicant would be well advised. Jools can fight for the right for ownership and commercialization of the catchphrase, however, the journey has become more complicated – but not insurmountable.
Content creators are well served to consider themselves as businesses. Their content is their creative assets, which should be proactively protected through a myriad of intellectual property laws and contracts that control how the creative assets are being used and monetized. Not all is lost for Jools but proactively integrating legal strategies into business plan is critical. Being demure with legal strategies is not the way forward to success. If you want success, proactive business and legal savvy is far better than any “head in the sand” cutesy approach.
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