[author: Olga Novinskaya]
When we say “meme”, we usually mean an internet meme. An Internet meme is an idea (and some content embodying this idea) spread via the Internet.
Memes are usually created in the internet community for humorous purposes. However, memes in practice may raise issues associated with copyright, registration of trademarks, or even with personal data protection.
This article is an overview of curious cases discussed in the Russian legal community and related to internet memes.
REGISTRABILITY OF A MEME AS A TRADEMARK
Memes have the potential for commercializing, as such viral content is a solution for marketing campaigns.
The practice shows that Rospatent often refuses to argue that applied designation is a meme and has gained wide popularity on the Internet. Therefore, it is not able to perform the main function of a trademark – the individualization of goods and services.
Technically this can be regarded as a lack of distinctiveness.
Of course, the characterization of the designation as meme doesn’t make it unregistrable. If we look at decisions of the Chamber for Patent Disputes and Intellectual Property Rights Court, these bodies use more “traditional” criteria. In particular, that a designation is descriptive, is being used by someone else, etc.
Let’s check the examples of registering memes as trademarks.
- “На донышке” (eng. “On the bottom”) case
The meaning of the meme: used to describe a small amount of vodka at the bottom of the glass. This is a common phrase in the Russian language, which has become a meme after a talk show scandal
Trademark № 707697,
NCL 33 (vodka)
In the beginning, Rospatent refused the application arguing that the verbal element is a meme and has no distinctiveness.
The Chamber for Patent Disputes overturned the decision and the trademark was successfully registered due to the following:
- the verbal element “На донышке” (eng. “On the bottom”) is not typical for the production of alcoholic beverages;
- the verbal element can be perceived as “a little bit”, “at the very bottom” by an ordinary consumer;
- there is no information about manufacturers using the designation for the goods of the NCL class 33.
- “Rossiano” case
The meaning of the meme: renaming Americano to Rossiano during a trend of import substitution caused by the U.S. sanctions against Russia
Application № 2018716193,
NCL 30, 35, 43 (include coffee and sale of coffee)
In the beginning, Rospatent concluded that the word “Rossiano” has no distinctiveness, as it gained wide popularity on the Internet and is used by many coffee houses in Russia.
Despite the fact that the Intellectual Property Rights Court canceled the decision of Rospatent, the court directly said that the designation “Rossiano” has not distinctiveness for coffee and sales of coffee. The reason is widespread usage of designation for the named goods and services.
- “+100500” case
The meaning of the meme: vigorous agreement with another Internet user’s statement on a forum or blog (like “+1”); or a designation of a huge number of something.
Application № 2012716376
Notwithstanding that the designation includes common characters and numbers, the Chamber for Patent Disputes concluded that designation acquired a distinctiveness for the services NCL class 41 (entertainment), as it widely used by the applicant as the name of a popular show (“+100500”).
- “На донышке” case: Opinion of the Chamber for Patent Disputes dated 14.01.2019 (Appendix to the decision of Rospatent dated 02.28.2019 on application № 2017728394)
- “Rossiano” case: Resolution of the Presidium of the Intellectual Property Rights Court dated 02.04.2021 № С01-209/2021 in case № СИП-181/2020
- “+100500” case: Opinion of the Chamber for Patent Disputes dated 29.05.2015 (Appendix to the decision of Rospatent dated 14.07.2015 on application № 2012716376)
PROTECTION OF COPYRIGHT OBJECTS USED FOR MEMES
The next case is about protecting the copyright holder of a work on which the meme is based.
In April 2021 Intellectual Property Rights Court made a decision in the case of infringement of rights to the sculpture “Homunculus loxodontus”, which is known in Russia after the nickname “Zhdun” (could be translated as “the awaiter”).
The copyright holder of the “Zhdun” demanded compensation from social network Vkontakte (the most popular one in Russia) to the fact that Vkontakte posted a sticker pack based on the image of “Zhdun”.
|The statue of Humunculus Loxodontus
||Meme “Zhdun” (waits in a queue at the post office)
||Sticker “Zhdun” 
In the copyright infringement cases, the court usually establishes: is the infringing work a rework or independent creation, were there grounds for free use of the infringed work.
In the case of “Zhdun” the Court applied an unusual logical chain:
- Meme “Zhdun” is an independent media object created collectively by the Russian internet community.
- VK used for stickers the meme “Zhdun” (not the sculpture).
- Stickers are the parody of the meme “Zhdun”.
The Court’s decision raises questions.
First of all, there is no definition of a meme or its special regulation in Russian legislation. Regarding this, the Court proposes his own definition:
Internet-meme is information expressed in a certain form (media object <…> phrase, image, concept, or activity <…> spontaneously gaining popularity, spreading on the Internet in a variety of ways).
However, it does not explain the place of the meme among objects of copyright and why the meme is namely a single media object, but not the concept, source of inspiration for concrete works of art.
Secondly, since the Court said that “Zhdun” is created collectively by the Russian internet community, it had to distinguish memes from the non-copyrighted works of folk art. However, this has not been done.
Thirdly, it is unclear why the Court did not analyze the process of creating stickers in order to understand whether the stickers a derivative work.
Such an unusual decision leads to the assumption that it was made by the Court intentionally. The decision in the case could have been influenced by the behavior of the copyright holder. The Court might think that the copyright holder acquired rights to “Zhdun” with only intention to bring claims in Russia. This is evidenced by numerous cases against Russian companies who used the image of “Zhdun” in their marketing materials, goods appearance, etc.
- Resolution of the Intellectual Property Rights Court dated 02.04.2021 № С01-274/2021 in case № А56-123039/2019
PERSONALITY RIGHTS PROTECTION
The last but not the least issue related to memes is the protection of personal information. Images of celebrities are often used for creating meme pictures.
The most famous case connected with violation of personal rights by meme was in 2015 – let’s check the “ББПЕ” case.
Roskomnadzor filed a lawsuit in the interests of Russian singer Valeriy Syutkin. An article dedicated to meme “ББПЕ” was posted on the defendant’s website. The article mentioned the name, surname of the singer and was accompanied by images of the singer and funny, but obscene inscriptions with the meaning “hit a woman in the face”.
The court supported the position of Roskomnadzor and concluded that such content is illegal and violates the legislation on personal data. As a result, the owner of the website was obliged to remove it.
In such cases the several options are potentially applicable:
- Protection of the copyright to photography(a meme may be considered as a rework of photography);
- Protection of the person’s image (as a general rule, the use of someone else’s image is allowed only with the consent of the person);
- Protection of the person’s honor, dignity, and reputation (if discrediting information has been posted);
- Protection under personal data legislation.
It is unusual that the last option worked in the “ББПЕ” case. Maybe the reason is the defendant’s passive attitude in this case. According to the court decision, it seems that the defendant did not argue with the conclusions of Roskomnadzor. At least he could refer to the fact that he maintains online meme-encyclopedia (i.e. creative activity) and he may process personal data without the consent of the singer.
As for the question of what data is considered as personal data, there is no clear answer as the practice is constantly changing. According to recent Roskomnadzor’s clarifications, the person’s name/image is not considered personal data if there is no additional information to identify an individual.
- Decision of Meshchansky District Court of the City of Moscow dated 04.2015 in case № 2-1869/2015
 Sounds like “Russia” in Russian: [Rossiya].
 Bic (Wikimedia Commons) CC BY-SA 4.0 , https://upload.wikimedia.org/wikipedia/commons/2/28/Beelden_in_Leiden_2016_04_crop.jpg
 Collage by Katerina Churakova, https://paperpaper.ru/waiting-for-zhdun/
 By Alexey Yascher, https://tlgrm.ru/stickers/zhdun_vk