Viral Trend to Legal Battle: The Fight Over 'Very Demure, Very Mindful' Trademark

The words “very demure, very mindful” have taken over social media the past few weeks following a viral TikTok by Jools Lebron. This has quickly become a trend on the platform with people stating their behaviours, wardrobes and hobbies are very demure and very mindful, or telling other people they are not acting in such a way. The video has amassed over 45 million views and 4.5 million likes and has TikTok in its grip.

But on 20 August, 15 days after the viral TikTok was posted, an application to the United States Patent and Trade mark Office was filed in Washington to trade mark the popular saying. The applicant, Jefferson A. Bates, filed the trade mark application for the purposes of advertising, marketing and promotional services, making no mention of the original creator, Jools. This has caused an uproar from Jools’ followers, many stating that they will refuse to buy any merchandise with “very demure… very mindful…” on it if the money will not be going to Jools. Clearly, Bates’ actions were neither very demure nor very mindful…

This point around trade marks has raised many questions since the application was filed as to how the application was made by Bates, and how Jools, as creator, could fight the application and claim the trade mark for herself.

In the United Kingdom, trade mark applications are made to the Intellectual Property Office (UKIPO) and are governed by the Trade Marks Act 1994 (TMA). Anyone can apply to register a trade mark, but not all applications will be approved.

There are two categories of grounds for rejection – the first being ‘absolute’ and the second being ‘relative’. Absolute grounds for rejection do not depend on external factors, such as a third party owning the rights to the trade mark already. If the UKIPO decides that the sign is not inherently acceptable as a trade mark for the types of goods/services specified in the application, the application will be rejected under absolute grounds.

Relative grounds for rejection relate to conflicts with other rights that already exist on the trade mark application date. These are not taken into account during the examination stage, due to the fact that the UKIPO does not reject applications on relative grounds, but they can be used as an opposition to the application.

In Jools’ case, there is a potential ground for rejection under section 3(6) of the TMA, which states that an application will be rejected if it can be shown it was made in bath faith, this being an absolute ground for rejection.

Bad faith under the TMA can arise if it can be shown that the applicant has no intention to use the mark as a trade mark, or if the application is a spoiling mechanism aimed at preventing someone else registering or using the mark. Recent UKIPO guidance issued on 3 April 2023 indicated that if it finds clear facts and information from which it can conclude that the trade mark applicant must have had some form of dishonest or sinister motivation for filing the application, it will present that information to the applicant. In this case, at least under UK law, it could be plausibly claimed that Bates filed the application in bad faith; since Jools was the original creator of the trend, it having been widely attributed to her, and the subject-matter of the trade mark having little value without the original TikTok going viral.

The trade mark application is still live and pending, and Jools Lebron has stated that she now has a legal team representing her in the matter. This outcome of this case may provide the intellectual property world with a new precedent in respect of viral sayings being trade marked.

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