Just as a wild Seattle raccoon with a shortened spine nicknamed Jimothy became the internet\u2019s latest obsession, the merchandise followed almost immediately. <\/p>\n
Street vendors are hawking Jimothy T-shirts. At least one online store<\/a> sells nothing but Jimothy merchandise. There\u2019s reportedly a Jimothy-themed cryptocurrency circulating, too.<\/p>\n And then came the intellectual property claims. <\/p>\n In an effort to further monetize the viral sensation, someone has already filed an application to trademark the name Jimothy for stuffed animals. Another filing by Sabine IP LLC covers Jimothy-branded baby products like cloth bibs, pacifiers, and baby lotions. <\/p>\n But according to IP attorneys, Jimothy is a free agent. He belongs to both everyone and no one.<\/p>\n \u201cI don\u2019t see it being something that anyone can claim rights to,\u201d said Eric Perrott<\/a>, a trademark and copyright attorney at Gerben IP. <\/p>\n Viral phenomena like Jimothy move too fast for anybody to easily claim exclusive rights, he said.<\/p>\n Comparisons to other viral animals like Grumpy Cat or Doge don\u2019t hold up because those memes had an identifiable owner from the start, Perrott said. <\/p>\n \u201cThey weren\u2019t protecting the idea of a cat named Grumpy Cat,\u201d he said. \u201cThey were protecting the videos that they produced, the content they produced under that name.\u201d <\/p>\n Jimothy can\u2019t be controlled by any one source, Perrott said.<\/p>\n No Owner, No Trademark<\/p>\n A trademark must be able to tell consumers who is behind a product or service, said Josh Gerben<\/a>, trademark attorney and founder of Gerben IP. \u201cThe name of the raccoon, in all likelihood, and a general image of the raccoon drawn however you would, would not theoretically be possible to be protected as a trademark,\u201d he said.<\/p>\n The one person who might have a claim is Seattle resident Kiana Hall, who is believed to have filmed the original video naming the raccoon Jimothy. <\/p>\n But proving it would mean showing that consumers associate \u201cJimothy\u201d specifically with her, not just with the raccoon \u2014 a high bar to clear once a name has gone fully viral, Gerben said.<\/p>\n \u201cIt can be very hard to recapture certain rights with trademarks once a name is part of the general vernacular,\u201d he said.<\/p>\n \u201cIt doesn\u2019t matter if you\u2019re the one that even said it first,\u201d Gerben said, describing how the US Patent and Trademark Office has reasoned on similar applications in the past. \u201cThis is what everybody\u2019s using, so you can\u2019t protect it as a trademark.\u201d<\/p>\n With Jimothy\u2019s image already on coffee mugs, onesies, and T-shirts from vendors with no connection to each other, he said, any single trademark owner has a challenging case to make. <\/p>\n And even if the PTO approves the pending Jimothy applications, enforcement isn\u2019t likely to follow, said Ashley E. Holland<\/a>, an associate at McKee Voorhees & Sease.<\/p>\n She referenced New York City street vendors who sell \u201cpretty obvious dupes.\u201d She said, \u201cDoes it really happen that Louis Vuitton goes after all of those people? Not super often.\u201d<\/p>\n Copyright\u2019s Narrow Reach<\/p>\n If there\u2019s any real legal leverage here, attorneys said, it\u2019s in the copyright space \u2014 and even that\u2019s limited to the original footage itself.<\/p>\n There could be copyright claims against people reusing Hall\u2019s original video, but \u201cthe minute they go to a clip art picture, or they draw one of their own,\u201d they get around the issue, Gerben said. <\/p>\n