Oppa Lawyer Style: Protecting IP rights in a viral video

The creators of ‘Gangnam Style’, the K-Pop video by Korean rapper PSY, which went viral after being released in July, are reportedly facing a trade mark fight in the Korean Intellectual Property Office (KIPO) over rights to the commercial use of the name ‘Gangnam Style’.

With more than 330 million views on YouTube in just over 2 months, the clip has certainly taken the world by storm. It has spawned reaction videos, memes, parodies, an ice-skating flash mob and a cameo dance number by Google CEO Eric Schmidt. Interestingly, The Guardian reports that PSY has waived copyright to the song, which might explain why so many of the YouTube tributes and parodies have not been taken down. If you haven’t yet seen it, watch it here.

Three weeks ago, the clip had a “mere” 132 million views, and has now skyrocketed to more than two-and-a-half times that number. Indeed, with over 3.2 million “likes”, the clip has the most number of likes for any clip in YouTube history. With a clip as ‘crazy viral’ as this, it’s no wonder the creators want to capitalise on its success and protect their potential trade mark rights. However, this is where it gets interesting. The Korea Times reports that KIPO is examining trade mark requests for the phrase ‘Gangnam Style’ from nine different parties, including the creators (PSY’s management agency, YG Entertainment). The other contenders are from a broad range of fields including a restaurant, manufacturers of shoes, golf products and climbing gear, a software developer and an office automation firm.

KIPO determines trade mark disputes, principally, on a first come first served basis. The first registration for ‘Gangnam Style’ was received on 16 August 2012. The creators of the song filed three trade mark applications on 16 August 2012, but were not the first to register ‘Gangnam Style’. As they were not first past the post, they will be hoping that KIPO’s examination takes into account the extensive reputation of its ‘Gangnam Style’ clip among consumers.

However, there’s a further complexity. For those who might have sung along without understanding the meaning of the words (Ed: okay, we admit it!), Gangnam is an affluent neighbourhood in Seoul, and a mecca for young people keen to party – South Korea’s answer to Beverly Hills.

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PSY lampoons the rampant consumerism and excesses that Gangnam has come to represent. Because the name involves a geographical location, and is descriptive, it’s popular. Others may therefore be justified in wanting to register the name.

The creators claim exclusive rights to the caricatured image of PSY stepping onto the capitalized English letters: GANGNAM STYLE, and sells various PSY and Gangnam Style merchandise on eBay and on its e-shop, including towels, pens and bandanas. They also allege that they will take legal action against “anyone who takes advantage of the name to make money”, and has already sent a letter to a German online shopping mall, calling for sales of a T-Shirt that read “Keep calm and Gangnam Style” to cease.

So you’ve reached marketing nirvana and come up with a brilliant viral video clip. How can you protect your rights in the song title or catch phrase?

  1. Get in first – there’s no time like the present. As soon as you think you may want to use the catch phrase for commercial purposes, get thee to thine nearest trade mark registry;
  2. Consider making up an original name. Around the world, there is less risk of a competing playing field if your name is a made up, original one; and
  3. If nothing else, do a trade mark search before launching your video, to make sure you won’t get into strife by infringing someone else’s registered rights.

The other option (in this hip and happening age of crowdsourcing, connections and collaboration) is to decide that your focus is solely on views, traffic and virality. Let your registered trade mark rights slide (like PSY has done in relation to copyright). Let someone else say ‘Been there, done that, sold the T-Shirt.’ Just remember that while your common law trade mark rights may provide some protection, it could prove more difficult and expensive to protect your rights without a registration. Further, even if you decide your trade mark rights don’t matter, someone else might take a different view. So, even if you don’t want to protect your own rights, make sure you do those checks to ensure you’re not treading on those of someone else.

Stay tuned.