A concept as a trademark?

Recently, we came across an unusual trademark application: a one-minute video explaining a game designed to tackle household clutter.

You can find the video below. How does the game work? The object classified as clutter receives a sticker from the person who did not leave it lying around: he or she is not to blame. The process continues until the culprit is unmasked — that person gets penalty points. Not exactly a mood-lifting game, but who knows, it might work brilliantly.

What’s remarkable about this application is that the concept was filed and accepted as a trademark by the European Union Intellectual Property Office (EUIPO). Apparently, the trademark office sees distinctive elements in this video. This raises a few questions for us.

A concept or format can contain elements protected by copyright. No registration is required for copyright protection. Registering a concept as a trademark, however, is new. The question then is: what exactly do you protect when you register a concept as a multimedia trademark?

The answer to that question is closely tied to the issue of what exactly the distinctive elements of this trademark are. This video is an explanation. No catchy jingle, no short clip like the Netflix intro, but rather a relatively long video in which the game is described. Long videos often run counter to the principle that a trademark should be easily memorable. After all, a trademark must be able to function as an indication of origin: trademarks that are too simple, or too complex or lengthy, lack this quality. So we wonder: what exactly makes this trademark distinctive? And will consumers even perceive it as a designation of origin?

To complicate matters, the video features a Star Wars mug. This mug serves as the example object that has not been tidied away. The names and logos of Star Wars are protected through various trademark registrations. We can imagine that Lucasfilm, the owner of the Star Wars films, might not be pleased and could file an opposition. How would the EUIPO assess such a (potential) opposition? In other words: are the few seconds in which the Star Wars logo appears enough to create a likelihood of confusion? And how do you assess a multimedia trademark of almost one minute compared to a word or figurative trademark?

Interesting questions — all prompted by a single trademark application. To be continued, most likely!

Author: Arnaud Bos

Bio: Arnaud is trademark attorney and within Knijff responsible for the marketing & communication. Arnaud is specialist in the metaverse and music sectors and his client portfolio includes many upcoming and renowned bands. He keeps a close eye on the latest case law in the EU and will let you know when he sees remarkable applications.