Trump’s Game of Thrones tweet an IP infringement?

In light of the upcoming US sanctions against Iran, US President Donald Trump tweeted a picture of himself with the quote “Sanctions are Coming” and the date November 5. It is to be noted that the tweet resembles the quote “Winter is Coming” from the acclaimed TV series Game of Thrones. Creator of the series, HBO, stated its displeasure and tweeted in response “How do you say trademark misuse in Dothraki?” Dothraki being the fictional language used in the show. 

HBO owns various trademarks for the phrase ‘Winter is Coming’ in Class 21 for mugs and glasses, Class 25 for clothing, Class 28 for toys and Class 35 online and retail store services featuring merchandise. 

Further to the trademark misuse, it is to be noted that the fonts used in Trump’s tweet and the general look and feel of the picture uploaded are similar to that of the TV series’ poster.

Legal Provisions

1. The United States Copyright Office disfavors short phrases to be copyrightable. US Copyright circular states that slogans and other short phrases or expressions cannot be copyrighted, moreover judicial precedents have also supported this view.^[1]  However, the look and style of a particular poster, the fonts used for the text etc. do come under the ambit of copyright.
    
2. As per the United States Patent and Trademarks Office (USPTO), unlike the copyright regime the trademark regime covers catchphrases as trademarks and can be registered with the USPTO through a regular TM Application.^[2] Even in India, catchphrases and short phrases are granted trademark protection. The slogan for soft drink Pepsi “Dil Mange More” was a contention in front of the Delhi HC and ultimately decided in favor of Pepsico, the proprietor. 

Takeaways

1. Phrases such as “Let’s Get Ready to Rumble” (registered in 1992 by boxing announcer Michael Buffer), “That’s Hot” (by celebrity Paris Hilton), “Hasta La Vista Baby” (from the movie The Terminator) are all registered trademarks. As a matter of fact, Donald Trump himself tried registering for the phrase ‘You’re Fired’ which was famous for his TV series The Apprentice but had failed to secure it.
    
2. Not long ago, it was alleged that HBO had slapped a takedown notice of a 13 year old girl who posted an image of a woman with the words ‘Winter is Coming’ at the top. The picture had nothing to do with the famous TV show but was taken down by the website Redbubble. However, it was later revealed that Redbubble itself had taken the step in fear of being sued by HBO for IP infringement. You can read more on the same here.
    
3. However, since the use by Trump is a play on the registered mark of HBO it can be called a parody, there is a little chance that HBO will go ahead with a notice or a lawsuit. Moreover, an industry specialist lawyer has stated that HBO “appears to have acquiesced to the alleged infringement activity by publicly stating that no further action will be taken, this in itself could be relied upon as a possible defence”^[3].

^[1] Kitchens of Sara Lee, Inc. v. Nifty Foods Corp., 266 F. 2d 541 (2d Cir. 1959); Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2003).

^[2] “How to Trademark a Phrase.” Legalzoom.com, 7 July 2017, www.legalzoom.com/articles/how-to-trademark-a-phrase

^[3] Newton Media. “Trump Sanctions Tweet Causes ‘Game of Thrones’ Stir.” World IP Review, www.worldipreview.com/news/trump-sanctions-tweet-causes-game-of-thrones-stir-16929.