Trademark Examiner Not Swayed By Katy Perry's Attempt To Trademark The Left Shark

from the shake-it-off dept

Fri, Apr 24th 2015 2:51pm — Mike Masnick

We've written a few times about the so-called left shark, the internet meme that took off after one of singer Katy Perry's backup dancers (in a shark costume, naturally) looked a little "off" during her Super Bowl performance earlier this year. The internet went crazy and created all sorts of memes around "left shark." A guy named Fernando Sosa started selling 3d printed Left Shark figurines -- and then Perry's lawyers freaked out and basically claimed ownership to all things "left shark."

Thankfully, the guy selling those 3D printed left sharks, Fernando Sosa, was able to retain lawyer Chris Sprigman, who pointed out that there is no copyright in costume design. Soon after that, we noted a bizarre twist on the story, in that Perry's legal team made a quick effort to go and trademark left shark, while (amazingly) using one of Sosa's photos of his own 3D printed models as the photo they submitted showing what they were trademarking.

Either way, Perry's legal team has been working on a few different trademarks related to "left shark" but apparently trademark examiner David Collier has some concerns about Perry's trademarking attempt:

David Collier, the trademark examiner, isn't yet impressed by the attempt to register the design, which, he wrote, "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."

In other words, there's not enough evidence submitted yet that consumers look at "Left Shark" and think of a Katy Perry music performance.

The examiner also noted the differences between a photograph of Perry dancing with "Left Shark" and the drawing of "Left Shark" submitted as the design.

"Specifically, the [photograph] displays the mark as a stylized 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 stylized 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 shark's mouth appears without teeth; the shark also has oval eyes without eyelids."

Of course, we feel obliged to go back to a point that Sprigman made early on in these discussions: while Perry may have had something to do with creating Left Shark, she had basically nothing to do with the reasons why Left Shark became "Left Shark" rather than "random dancing character in a big show that everyone forgets soon after." As Sprigman noted:

No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn’t really about Katy Perry.

So if anyone deserves a trademark on it, it should be "the internet." Or we can just make this simple and not trademark it at all.

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Filed Under: katy perry, left shark, trademark

25 Comments

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You are being watched (profile), 24 Apr 2015 @ 3:06pm

We did create it after all
If we trademark memes under the global conglomerate of 'the internet,' we could really mess with the gung-ho trademark idiots by fighting them on their own turf. Ah, the chaos that would cause...
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Anonymous Anonymous Coward, 24 Apr 2015 @ 3:18pm

How Sad
And the only ones surprised, erm flummoxed, I mean disappointed are Katy Perry's lawyers.
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DOlz (profile), 24 Apr 2015 @ 3:35pm

Sherman’s Lagoon
Has anyone informed Jim Toomey about this?
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william (profile), 24 Apr 2015 @ 3:35pm

Now whenever I see or read about Left Shark, I think of how idiotic Katy Perry and her legal team/publicist are.

So in a way, it is a trademark for Katy Perry since I associate it with her, the uneducated, ill-informed, and idiotic Katy Perry.

I applaud on mission accomplished by her publicist and lawyer to trademark left shark and associate it with Katy.
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Anonymous Coward, 24 Apr 2015 @ 3:36pm

Not trademark it at all?
But... but... someone must own it, that's how IP works!
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Zonker, 24 Apr 2015 @ 4:15pm

I take this as a sign that Katy Perry's career has jumped the left shark.
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That One Other Not So Random Guy, 24 Apr 2015 @ 4:57pm

Left Shark isn’t really about Katy Perry.
I dont want to be the one to tell her that.
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Anonymous Coward, 24 Apr 2015 @ 5:34pm

Either way, Perry's legal team has been working on a few different trademarks related to "left shark"

Could it be that Perry had nothing to do with this and the legal team is completely to blame?
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Uriel-238 (profile), 24 Apr 2015 @ 5:53pm

Katy Perry is losing a lot of points because of this.
Are her lawyers really representing Ms. Perry or just her recording contract with Capitol Records?

Because enquiring minds want to know if she's being a copyright dick, herself or just has sharks being copyright dicks in her alleged name.
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CanadianByChoice (profile), 24 Apr 2015 @ 7:23pm

Re: How Sad
Naaa .. they got paid. In fact, they have a vest interest in NOT winning quickly - they get paid over and over for the same task. (Wish I could do that with MY employer!)
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Anonymous Coward, 24 Apr 2015 @ 8:19pm

Re: Katy Perry is losing a lot of points because of this.
Likely the latter based upon the background of the person reportedly leading the effort.
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David, 25 Apr 2015 @ 12:05am

Re: Left Shark isn’t really about Katy Perry.
Nothing is really about Katy Perry. That's her problem. The market for Left Shark figurines is way more promising than that for Katy Perry figurines.

I would be surprised if more people can recognize Katy Perry than Left Shark. She is no Klaus Nomi.
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JoeCool (profile), 25 Apr 2015 @ 12:18am

Re: Re: Left Shark isn’t really about Katy Perry.
Kate Perry is ONLY known for being "that girl sometimes mistaken for Ellen Page". All her attempts to break out of that mold have failed.
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Anonymous Coward, 25 Apr 2015 @ 3:07am

why doesn't the obnoxious bitch just pack it in? the world can live without this sort of shit! she's obviously got too much money as she's wasting it on trying to get something she's not entitled too. she would be better employed handing money over to charities than throwing it away like this
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Anonymous Coward, 25 Apr 2015 @ 6:44am

Re: Katy Perry is losing a lot of points because of this.
OR maybe the lawyers are really representing someone who wants Katy Perry gone to the history books?

If I was her, I'd be hiring an investigative team to check who else her 'lawyers' are working for as they seem hellbent on deliberately destroying any reputation she's built up.
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Anonymous Coward, 25 Apr 2015 @ 6:45am

Re:
taking bets that the law firm she has working for her is registered as a non-profit and has paid zero tax for the last few decades.....
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Anonymous Coward, 25 Apr 2015 @ 8:10am

Re: Re: Re: Left Shark isn’t really about Katy Perry.
You need to get out more
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Anonymous Coward, 25 Apr 2015 @ 8:18am

Re:
You may find her to be obnoxious, but I doubt it is because of this shark silliness alone. Why don't you tell us how you really feel about it rather than hiding behind some media story.

She has too much money? Relative to what ... other rich folk who do not appear on your TV set and do not want to get things they are not entitled to? Do you personally know any of these mythical creatures?

Who put you in charge of telling others what they would be best at doing for a living? What are you, some sort of commie bastard?
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tqk (profile), 26 Apr 2015 @ 12:27pm

Re: Re: Re: Left Shark isn’t really about Katy Perry.
Isn't she also the one known for displaying an "unacceptable" amount of cleavage on Sesame St?
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Uriel-238 (profile), 26 Apr 2015 @ 12:50pm

*duckducking "seseme street cleavage"*
Holy cow, yes!
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tqk (profile), 26 Apr 2015 @ 2:39pm

Re: *duckducking "seseme street cleavage"*

Isn't she also the one known for displaying an "unacceptable" amount of cleavage on Sesame St?

Holy cow, yes!

No kidding, which I consider rather perverse. What do those complainers think mammary glands are for, other than to produce baby food? Every mammal has nipples, including males. Every child watching Sesame St. is at most only months or a few years past being intimately familiar with their mother's breasts. What more apropos audience is there than children?

You inadvertently bring up another point. Why don't we cover cow's udders if they're so dangerous? Why aren't male body builders forced to cover up? Some of them have bigger breasts than many women.

I'll be very happy to see the end of this prudish nonsense.
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Uriel-238 (profile), 26 Apr 2015 @ 5:16pm

Hot and Cold...
was re-edited to be "kid safe" still featuring Ms. Perry in a bridal gown (as per the original video).

Apparently, parents freaked out and phoned PBS so it never made it from Youtube to broadcast.

I'll reserve judgement until I see it but given that as a kid I just didn't notice cleavage (or naked breasts) as titillating until I hit puberty, this seems obviously about parents freaking out.
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John Fenderson (profile), 27 Apr 2015 @ 8:01am

Missed opportunity
I'm sure that Perry's lawyers disagree, but she has missed an enormous opportunity here. She could have ridden this Left Shark thing to its end and gained a huge amount of benefit from it through the association. Done right, she could have endeared herself (perhaps ironically, but still...) to an audience that currently sees her as a target of ridicule.

Instead, she decided to waste her time, money, and the attention Left Shark gets by putting it all into pointless court cases.
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