Multiple people have applied to trademark the viral phrase “very demure, very mindful” since it was uttered by Chicago-based content creator Jools Lebron in a TikTok video posted on Aug. 5. Susan Scafidi, director of Fordham Law’s Fashion Law Institute, was quoted in a Business of Fashion article discussing who gets to capitalize on cultural moments including viral internet content.
The frenzy reached its peak on Aug. 17, according to Google Trends, and as TikTok trends often do, has since died down from that initial hype. But that hasn’t stopped at least two people from filing applications to trademark various forms of the original expression. They notably did not include Lebron, who said she “dropped the ball” in not doing so quickly enough in a recently deleted video.
In one filing, petitioner Jefferson Bates — who is unaffiliated with Lebron — said they intended to use the phrase for “advertising, marketing and promotional services.” If the trademark is granted, it would not only interfere with Lebron using it, but brands as well, according to Susan Scafidi, academic director at the Fashion Law Institute at Fordham University. Even regular people who end up recreating the video could be subject to a cease-and-desist letter if Bates is a “tough enforcer,” she said.
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“A trend wouldn’t be a trend if only one person owned it,” said Scafidi. “A trend is typically something that is broader and repeated, and it’s the repetition that creates the value.”
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To better protect themselves, creators should be prepared to file a trademark claim as soon as their content goes viral, said Scafidi. Not only due to the financial benefits, but also because it strengthens their case. Bates, for example, filed an intent-to-use trademark which means that they aren’t yet using it in commerce.
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“If you’re out there as a content creator on the internet and you have any thoughts of turning your time on TikTok into something valuable, be ready … if lightning strikes,” said Scafidi.
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The decisions — including how a creator monetises their 15 (or maybe now, closer to five) minutes of fame — leading up to a trademark issuing are key, Scafidi added. Creators whose content is strongly associated with their personas and signature can enforce the right to publicity, a property right that gives individuals control to the commercial use of their name, image and likeness.