Brace yourself: Shark Week is coming. We all know and love the annual celebration of Elasmobranchii (yes, I had to look that up.) And with Shark Week comes the yearly trademark question: can you use the name Shark Week?
My readers may be familiar with my landmark 2013 blog post “Is it the Super Bowl or the Big Game?,” in which I explored the venerable legal question of whether or not you can use the term Super Bowl. More or less the same analysis applies.
I’m going to interrupt this blog post to remind my readers that, oddly enough, I wrote another post a few months ago that also involved sharks and the Super Bowl, and, no, it didn’t involve the fictional Miami Sharks football team from Any Given Sunday. It was this: “Copyright Question: Who Owns the Left Shark?”
Alright, let’s get back on topic. SHARK WEEK, of course, is a trademark registered with the USPTO by Discovery Communications, Inc. for the following services: “television broadcasting” and “educational and entertainment services, namely, television programming; television show production; distribution of television shows and a group of television shows aired periodically for others.” A few years later, Discovery obtained another USPTO registration for SHARK WEEK for “Clothing, namely, T-shirts, tank tops, sweatshirts.”
So far, it’s pretty simple: you can’t use SHARK WEEK as a trademark for those goods or services without Discovery’s permission.
What if you’re an advertiser or another business who wants to use the words “Shark” and “Week” in that order?
Well, Discovery may come after you. And you might very well raise the defense of (say it with me, everybody) Nominative Fair Use. From the Super Bowl post:
There are three factors to determine if use of a mark is nominative fair use:
- The mark must not be readily identifiable in any other way.
- The mark can only be used to the extent necessary to identify it.
- The mark can’t be used in such a way as to suggest a false connection or sponsorship arrangement.
To make that a bit more simple, you can use it, but not abuse it, and you can’t lead people to believe that your product or service is connected directly to Discovery’s Shark Week.
In the real world, of course, you don’t want to get a cease and desist letter from Discovery’s lawyers. Be very careful when you’re using a phrase that’s a famous trademark owned by a big company. You may be in the right, but that won’t cover your time and legal bills.
In conclusion, I want to leave you with these words of wisdom: live every week like it’s Shark Week.
Bonus Content: For mark Shark Week trademark fun, check out trademark blogging superstar Erik Pelton’s post “Fun SHARK WEEK® trademarks.“
