Co-authored by Ms. Divya Srinivasan, LexOrbis Associate and Ms. Indrani Das, Final Year, LLB, Campus Law Centre, University of Delhi.
One of the most recent ‘trends’ that seems to have set social networking sites ablaze are the sardonic ‘memes’ with the tagline ‘Be like Bill’. While internet memes and trendsetting hash-tags are viral, this meme has also latched itself to the list of Internet sensations.
‘Be like Bill’ is a social media ‘meme’; according to the Oxford Dictionary a meme is defined as an image, video, piece of text, etc., typically humorous in nature, which is copied and spread rapidly by Internet users, often with slight variations. The meme is a modest image of a stick man/figure, sometimes wearing a hat or other apparel depending upon the message of the meme, who offers information to people over social media in a passive-aggressive manner. It was developed by Eugeniu Croitoru and Debabrata Nath, has a Facebook page and has received over 1.5 million ‘likes’.
Memes usually don’t have any commercial value but they pose a lot of questions related to intellectual property (IP). Considering they are not protectable under IP laws they would come under the purview of ‘fair use’. Fair use is a defense against an infringement suit and falls in two categories: (a) commentary & criticism; (b) parody.
Although it is wrong to assume that an IP in a meme is not owned by any individual, considering the image/photograph/video or any descriptive material embedded within the meme could be the protected IP of someone else; such usage could lead to hefty infringement proceedings. Also, the fair use defense is not necessarily available when the meme in question is appropriated for commercial use or benefit.
Recently, a third party trademark application was applied for ‘BE LIKE BILL’ at the Intellectual Property Office, UK, for a wide variety of goods and services viz. computer software, printed matter, brand creation, advertising, promotional activities and sponsorship, to name a few.Despite the fact this has come as mild shock to the creators of the said meme, they are filing for trademark registration in various countries so as to safeguard their rights by way of using both the image and the name. Once protection is granted, they can initiate legal action/infringement/passing off action against infringers of their IP. Currently, the “stick-man” image has acquired a considerable degree of ‘distinctiveness’ amongst the social media net-workers in a short span of time, fulfilling the prerogative of distinctiveness for registration.
Although the UK application for ‘BE LIKE BILL’ has been filed with ‘malafide/bad faith intentions’ the fact that, the applicants were aware of them not being the originators/creators, is substantial to prove bad faith. The onus to prove the same will lie on owners and creators of ‘Be like Bill’.
There exist many trend setters on social media networks, which are usually considered as elements of a culture, cult following, or a system of behaviour passed from one individual to another by imitation or other non-genetic means. Whether ‘Be like Bill’ will establish a niche for itself the IP way is yet to be ascertained.