By: Penny Pathanaporn 

With the rise of fast-paced social media platforms like TikTok, it’s no surprise that viral trends come and go just as swiftly. For example, in May 2023, a controversial viral trend called “Girl Dinner” circulated all over TikTok. Across many social media platforms, users documented meals consisting of an arbitrary combination of leftovers and snacks, dubbing them “Girl Dinner.” 

This past June, another viral trend—“Brat Summer”—emerged following the release of Charli XCX’s album “Brat.” Users across social media platforms used the term “Brat Summer” to describe an aesthetic or a lifestyle that embraces bold self-expression, a trait endorsed by Charli XCX herself. 

On the surface, viral trends may appear trivial. Social media users might derive joy from participating in these trends without much thought about who actually created them or whether they can even be owned. But, in reality, creators of viral trends are often faced with an uphill battle of obtaining legal protection for their creations through trademarks. Trademarks, which are words, symbols, or designs used to identify goods, help prevent other people from profiting off a creator’s work without permission and from tainting the reputation of a creator’s brand. 

The Latest Viral Trend: “Very Demure, Very Mindful”

This past summer, TikTok creator Jools Lebron created a viral trend known as “Very Demure, Very Mindful.” On August 2, 2024, Lebron published a TikTok video titled “How To Be Demure at Work.” In the video, which has now amassed more than 52 million views, Lebron states: “You see how I come to work? Very demure . . . I do my makeup . . . I do a little braid . . . Very demure. Very mindful.”  

Following her first video, Lebron documented herself engaging in ordinary activities that she describes as “demure” and “mindful,” such as going to the salon or deboarding a plane. Although these terms are initially equated with endearment or modesty, as the trend caught on, TikTok users began using the terms in a more ironic fashion. 

Despite the virality of her videos, Lebron soon faced issues with obtaining legal protection for her work. On August 20, 2024, a man named Jefferson Bates, who did not create the “Very Demure Very Mindful” trend, submitted a trademark application for the phrase at the United States Patent and Trademark Office (USPTO). 

On August 29, 2024, Lebron rushed to file a trademark application for her viral creation at the USPTO. However, by that point, at least three other people had already submitted trademark applications for the very same catchphrase. Like Bates, these individuals did not create the “Very Demure Very Mindful” trend. 

U.S. Trademark Law: A Silver Lining 

There is still a silver lining for Lebron. Although just about anyone can file a trademark application for a phrase at the USPTO, filing an application does not guarantee ownership over the trademark. 

First, for a phrase to be successfully registered as a trademark, the registrant must use the phrase for a commercial purpose. For example, if an individual uses the phrase on a product or ties the phrase to a service, this can qualify as commercial usage. Under U.S. trademark law, those who first utilized a phrase for a commercial purpose may be able to amass trademark rights and have priority over those who first filed a trademark application.  

After going viral, Lebron partnered with multiple companies such as Lyft and Verizon, using her viral catchphrase to help promote these famous brands. These partnerships may work in Lebron’s favor in her fight to trademark the catchphrase since these brand deals could be evidence of commercial use. 

Second, the USPTO can reject trademark applications based on false associations. In other words, if the phrase that has been applied for is falsely connected with a person, the application may not be approved. For example, the Trademark Trial and Appeal Board denied Bang Energy’s application to trademark the words “Purple Rain” due to its false association with the artist Prince. Prince’s album “Purple Rain” is so culturally significant that the general public would automatically associate the words “Purple Rain” with the artist’s brand rather than Bang Energy. 

Like the Bang Energy case, there is a possibility that trademark applications for “Very Demure, Very Mindful” may be rejected. Lebron’s legal team may be able to argue that, because the public strongly associates Lebron’s identity with the “Very Demure, Very Mindful” trend, permitting individuals like Bates to trademark the catchphrase would fall under the false association doctrine.  

Afterall, unlike the “Girl Dinner” trend—which saw social media users partaking in the trend without associating the creator with the catchphrase—Lebron became the face for the “Very Demure, Very Mindful” movement. Lebron even appeared as a guest on Jimmy Kimmel live to promote her catchphrase, and was invited to attend the Democratic National Convention, most likely due to her popularity amongst the younger generation. 

Lastly, under U.S. trademark law, the USPTO can also reject trademark applications for phrases that are “widely used message[s]” and are not directly related to the applicant. Lebron’s trademark application could be successful since TikTok users seem to consider the viral catchphrase “Very Demure, Very Mindful” to be a part of Lebron’s personal brand. Nevertheless, the USPTO has the final say and may ultimately render a decision that could swing either way. 

Implications of the Race to Trademark in the Online World 

Although Lebron has a strong case against the individuals who have attempted to trademark her creation, Lebron’s struggle to hold on to something that should have already been hers represents a problem that many small creators face. Small creators typically lack the legal knowledge and resources to know when to take swift action to protect their work and profit from their own creations.  

Despite the silliness of viral trends, these creators still deserve legal recognition and protection for their work. For Lebron, her catchphrase represents a life-changing miracle. Because of her newfound success resulting from the “Very Demure, Very Mindful” trend, she was able to “finance the rest of [her] transition.” Accordingly, it is important for small creators and influencers to be educated on the rights that they have to their online content, which for many is how they ultimately earn a living.