Many of us remember the dancing shark in Katy Perry’s performance during halftime of this year’s Super Bowl between the Seahawks and Patriots. The shark, named “Left Shark,” was a big hit on the stage, and entrepreneurs have been attempting to capitalize “Left Shark” ever since, selling T-shirts, figurines, and other goods. In response, Ms. Perry is trying to assert intellectual property rights in Left Shark, but the Trademark Trial and Appeal Board (TTAB) appears to be unwilling to oblige.
In April 2015, the TTAB issued an official letter refusing registration of the design of Left Shark as a service mark, finding that Ms. Perry’s services are “musical and dance performances,” while Left Shark “identifies only a particular character [and] does not function as a service mark to identify and distinguish [Ms. Perry’s] services from those of others and to indicate the source of [Ms. Perry’s] services.”
A trademark is a brand name that includes words, names, symbols, or combinations thereof. Service marks are different. A service mark identifies and distinguishes the services, rather than the goods, of a seller or provider.
But Perry still has other applications pending before the TTAB, including registration of the phrase “Left Shark.” If she chooses, she can also respond to the TTAB’s rejection letter and appeal a final refusal by the TTAB in federal court.