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Mixed success in Katy Perry’s trademark claims over Left Shark
By Chris Cooke | Published on Wednesday 22 April 2015
So, we all know you’ve been preoccupied for sometime now on the big question that has dominated the music business agenda for most of the year so far. Can Katy Perry really own the rights, the image, the brand, the very essence of the being of the mighty and, some might saw, generation inspiring and world peace enabling, Left Shark? Well, “yes and no” is your answer.
As everyone knows, Left Shark became a ‘thing’ during Perry’s Super Bowl half time show back in February, because a guy to the left of Perry dressed in a stupid shark costume was dancing about out of sync with the rest of the on-stage cast. And in 2015 that’s the sort of thing that becomes a global phenomenon in mere minutes.
As Left Shark dominated online chatter – and possibly because designer Fernando Sosa made a 3D printed figurine called Left Shark available online – Perry quickly began investigating how she could take ownership of all and any intellectual property in the name, the image and the concept of Left Shark. Because God knows you don’t want poor old Left Shark left in the public domain. He’d probably swim into a tuna net. Or is that dolphins?
Anyway, the US Trademark Office last week responded to Perry’s various IP claims. And examiner David Collier wasn’t impressed with the singer’s attempts to get IP protection for the image of Left Shark. According to The Hollywood Reporter, Collier wrote that the design “identifies only a particular character; 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”.
The examiner also noted that there were inconsistencies between a photo of actual Left Shark (ie the dancer bloke in the costume) and a drawing of what Left Shark should look like. Inconsistencies that resulted in an amusingly precise description by the trademark official of the different incarnations of our sharky friend.
“Specifically, the [photo] displays the mark as a stylised depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail”, he wrote. “The shark has five gills, a full mouth with teeth and round eyes with eyelids. However, the drawing displays the mark as a stylised depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the sharks mouth appears without teeth; the shark also has oval eyes without eyelids”.
And there was you thinking Left Shark was just a man in a silly costume. But while things aren’t looking good for Perry getting protection for her Left Shark design, she might still get ownership of the name. Though Collier says he needs more clarification as to what products could now be created under the brand. Costumes obviously, but what sort of costumes? Figurines apparently, but what sort of figurines? Perry needs to submit more info.
Quite what this all means for Perry’s dispute with the aforementioned Sosa isn’t clear, mainly because that squabble related to copyright rather than trademark protection. Though this is still a good excuse to re-link to one of our favourite Beefs Of The Week so far this year.
A beef that included great quotes from Sosa’s lawyer CJ Sprigman, who said things like: “I’m obliged to admit that, unlike any shark I’ve seen, the Left Shark costume has legs, but that doesn’t make the Left Shark costume copyrightable. The Left Shark costume has legs because the person inside it has legs”.
