Long after the air has gone out of deflategate, people are still talking about Katy Perry’s Super Bowl Halftime show. More specifically, those people are the US Patent and Trademark Office and they’re talking about the memeable Left Shark.
Yes, Perry is trying to trademark the clumsily dancing costume that stood behind her during her Super Bowl performance. Unfortunately, trademark examiner David Collier was not convinced by her attempt to register the character design, and denied the trademark request.
To begin with, Collier argued that Lefty “does not function as a service to identify and distinguish applicant’s services from those of others…” That is to say, people don’t instantly connect Left Shark to the pop singer’s music or concerts.
Also damaging to Perry’s efforts was the fact that they got the design wrong in the submission. A picture from the Halftime Show was submitted with a drawing of Left Shark, and the two didn’t match up. As Collier wrote in his review,
Specifically, the specimen displays the mark as a stylized depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail. The shark has five gills, a full mouth with teeth and round eyes with eyelids; however, the drawing displays the mark as a stylized depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the sharks mouth appears without teeth; the shark also has oval eyes without eyelids.”
Whoops. The good news is she can at least try again.
Perry was more successful in trying to trademark the phrase “Left Shark” — though, the examiner has asked for clarification on terms like “costumes” (Halloween or mascot?) and “figurines” (plastic or glass?). If Perry’s company can clean up these concepts, she could very well register the word mark “Left Shark.”
These trademark attempts come after Perry tried to stop a man from selling 3D printed Left Shark figures. That case mostly involved copyright — whether the man could sell anything resembling Left Shark — rather than trademark — whether he could label it “Left Shark.” The way things are shaping up, he’ll be able to do the former, but might have to call it “Not Right Shark.”
