In case you missed SHARKNADO last year, fear not, the sequel SHARKNADO 2 — The Second One, is taking the country by storm, and it is reportedly even better than the first SHARKNADO film. Not having seen either, I’m not sure whether that’s saying much.
What is even harder to avoid seeing, however, is all the media attention and publicity SHARKNADO 2 has amassed over the last few days.
Entertainment Weekly reported yesterday “3.9 million viewers tuned in to SyFy Wednesday night to watch the premiere” of SHARKNADO 2, making it “SyFy’s most watched original movie ever.”
CNN also reported yesterday on the feeding frenzy SHARKNADO 2 has stirred up on Twitter.
NBC’s Today Show even played a role in SHARKNADO fever with silly cameo apperances by Matt Lauer and Al Roker.
All this attention made me wonder what kind of trademark filings have been done on the SHARKNADO franchise and whether any trademark bottom feeders improperly have attempted to cash in on the sudden popularity of the coined SHARKNADO brand and trademark.
As it turns out, I was a bit surprised to only find one USPTO filing for SHARKNADO, given all the hype, focus, and attention. But, what is even more bizarre than the film’s absurd plot (as seen in the onslaught of trailers) is that this single filing matured into a Supplemental Registration, as opposed to a Principal Registration.
Remember, Supplemental Registrations cover marks only capable of becoming distinctive and they are toothless in the protection they provide the owner — the Principal Register at the USPTO is the coveted prize reserved for those marks that are distinctive for their associated goods and services.
So, why did SHARKNADO land on the floor, i.e., the USPTO’s Supplemental Register?
Perhaps an overzealous Examining Attorney refusing registration because SHARKNADO is the title of a film and doesn’t function as a trademark? Actually, no — that refusal wasn’t made and couldn’t have been sustained because the goods covered by the resulting registration involve “beer mugs” and other items in Int’l Class 21, along with “whoolly hats” and other clothing items in Int’l Class 25, not entertainment services in Int’l Class 41 or DVDs in Int’l Class 9.
It would be hard to sustain an argument that the coined mark SHARKNADO is not distinctive and registrable for “beer mugs” and “whoolly hats,” even if it also functions as the title of a film.
No, the SHARKNADO registration landed on the Supplemental Registration floor, because that is how the application was filed by The Global Asylum, Inc. on July 24, 2013, seeking registration on the Supplemental Register in Int’l Classes 21 and 25.
My question is, assuming no mistake, why bother spending $650 filing anything? If you’re going to go through the minor trouble of filing something, why ask for nothing close to what you’re entitled to receive? The filing fee is the same, so it’s not like the owner of the admittedly B horror franchise was able to save a few bucks — to pay Tara Reid more — in accepting the lesser registration.
I don’t know, maybe they misunderstood the law. And, just maybe they’ll get it right yet, with a trademark application sequel.
Although the names of single creative works cannot be registered as trademarks for tangible copies of those works or the entertainment services they may embody (not even on the Supplemental Register), and putting aside any personal challenges as to whether the film in question is fairly called “entertainment,” now that there is a sequel using the SHARKNADO name, it should be considered inherently distinctive and registrable on the Principal Register even for entertainment services in Int’l Class 41 or DVDs in Int’l Class 9.
And, just to make sure two is really more than one, SHARKNADO 3 is apparently already in the works, given the growing cult following — resolving any possible doubt about whether SHARKNADO represents the mere title of a single creative work. We’re talking series, now.
My only hope for Global Asylum is that their needed second and third trademark application sequels aren’t as much of a joke as their first attempt, or the SHARKNADO storyline.
To be on the safe side, let’s put on some whoolly hats, fill our beer mugs, and stay tuned for some more entertainment . . . .