Until very recently, if someone had said to me “Winter is Coming”, in my ignorance I would have said that as Summer was so hot and humid this year, I am looking forward to some cooler weather.
But no more – as I have now been introduced to the HBO juggernaut Game of Thrones or as the fans say, GOT.
As many of you will know, the program has entered its eighth and final season. It has many million viewers and dedicated fans worldwide and has been a ratings, financial and promotional smash hit for the network.
As a measure of its popularity, the show is reportedly the most pirated television program across the globe. It also appears that the show has many high profile followers including the President of the United States of America, who has managed to get the network’s nose out of joint due to what they consider to be “trademark misappropriation”.
The President clearly knows his way around his social media accounts and, in this case, has used his twitter handle @realdonaldtrump to confirm that he intends to reimpose all U.S. sanctions on Iran that had been relaxed under the 2015 nuclear deal brokered during the Obama administration “to deny the regime the funds it needs to advance its bloody agenda!”.
He did so by posting the following image to his account, which some pundits claim to contain similar font and artwork to those set out in some of HBO’s Game of Thrones marks:
An example of the HBO font and artwork can be seen in the application which they filed earlier this year (and specifically in the three vertical stripes in the letter ‘O’ and diamond configuration).
The text is also said to be a play on words to the phrase ‘Winter is Coming’ which is used prominently in the program and has been registered as a trademark in Australia (TM#1697237).
Curiously, and for the law nerds reading this, the Winter is Coming trademark is registered in class 21 for various household and kitchen items and class 25 for various items of clothing, caps and footwear. The clothing and caps, I understand, but the kitchen appliances?
Other strange goods and services claimed by GOT marks include:
- Trade mark application 1855237 “GAME OF THRONES” in class 33 for “wines”. Perhaps not all that surprising as there is extensive reference in the program to wine.
- Trade mark application 1852035, “GAME OF THRONES” in class 15 for musical instruments including “guitars” and “picks”.
- Trade mark 1514894 “Khaleesi” in class 3 for various beauty and cleaning products including bleach and hair lotions, which is mildly amusing as the character given that title is a natural brunette who wears her hair snow white in the program.
In relation to the President’s posts, HBO are reported to have said “We were not aware of this messaging and would prefer our trademark not be misappropriated for political purposes.”
HBO’s official Twitter account followed up soon after by asking “How do you say trademark misuse in Dothraki?” – referring to a fictional language used by one of the kingdoms or tribes which appear in the show.
Inspiration or Infringement?
What seems clear is that the President used and referenced the show as inspiration for his tweet. As with most claims of IP infringement, the question is whether or not the president went too far. Or put another way, when does the referencing of another brand cross the line from inspiration to infringement?
It isn’t unusual to see traders referencing common or well-known brands to gain a foothold or greater recognition in the market. That can be through use of a similar (but sufficiently distinctive) name, similar shaped packaging, wrappers or packaging with the same or similar colouring. It is no coincidence that the shelves in some supermarkets are full of products that have similar shape, colour, style or packaging to their more well-known or expensive counterparts. However, those similar products generally have features which make them sufficiently distinctive or able to be distinguished from the products they have taken inspiration from.
The test is both qualitative and quantitative. That is, where a large portion of the earlier work has been copied, or where an essential part of the work has been copied, then there is likely to be infringement. On that basis, Men at Work were found to have infringed the rights in ‘Kookaburra sits in the old gum tree’ although the flute riff in ‘Downunder’ is only six bars of the entire song.
Although HBO have registered a number of trademarks and some of those contain specific font, typeface, features or logos, the President’s use of the Thrones font script that looks like the Game of Thrones emblem (in the image which the President tweeted) is likely not infringing due to the differences between the tweet and the registered mark.
A claim might also generally require the entity alleging infringement to be able to show that the public was or is likely to be confused. Because it is unlikely anyone would think the President was affiliated with Game of Thrones, that would be a difficult argument to make, as no-one is likely to be confused that HBO is endorsing the tweet or sponsoring sanctions against Iran. However, HBO doesn’t think that is the case with other marks which it is pursuing for trade mark infringement in the US, including:
- Case Number 87014324 – Game of Homes;
- Case Number 87287627 – Game of Drones; and
- Case Number 87012499 – Game of Tones.
So for now, although Sanctions may be coming, Winter is not yet here for the President, at least in a trade mark sense.