by Josh Escovedo
IP Law Blog
If your heart is beating and your lungs are taking in oxygen, you know that Game of Thrones recently reached its epic conclusion. It’s sad, but true. After eight glorious seasons, the most watched television series in history has ended. Even as I put the words to paper, or rather, this Word document, it doesn’t seem real. For those of you who haven’t watched the series, you probably think I’m being melodramatic. But loyal Thrones supporters know the agony I felt and can mostly likely empathize. Now, at this point you’re probably wondering what this has to do with intellectual property, and I promise, I’m getting there, but without a full comprehension of the Beatlemania-style obsession Game of Thrones has afflicted its fans with, you can never understand the value of the brand and its various marks. And to paraphrase Arya Stark’s mentor Syrio Forel, “[t]here is only one thing we say to [infringement]: Not today.”
As I’ve said in the past, when a company builds value in its trademarks, it’s imperative that the company take the necessary steps to protect its intellectual property. This is true regardless of the industry, but it is especially important in the entertainment industry where the trademarks are likely to be exposed to a substantial number of consumers, and would-be infringers, and more importantly, where the marks are likely to be used in conjunction with highly desirable merchandise. And of course, after producing blockbusters like The Sopranos, Band of Brothers, The Wire, Entourage, and Boardwalk Empire, HBO knows the name of the game, and certainly knows how to protect its intellectual property.
To that end, in 2009, two years after acquiring the rights to George R.R. Martin’s epic fantasy series, A Song of Ice and Fire, HBO filed a trademark application with the United States Patent and Trademark Office to register GAME OF THRONES for “[e]ntertainment services in the nature of an ongoing television series[.]” And that was just the start. Since that time, HBO has registered over 100 applications for different Game of Thrones trademarks, including without limitation WINTER IS COMING, WHITE WALKER, HOUSE TARGARYEN, HOUSE STARK, the THREE-EYED RAVEN, HODOR, and my personal favorite, DRACARYS, which is High Valyrian for “dragonfire.” For you non-Thrones fans, High Valyrian is the language often used by the show’s female lead, Daenerys Targaryen.
In an article on Law 360, Catherine M.C. Farrelly, the co-chair of Frankfurt, Kurnit, Klein & Selz, P.C.’s trademark group recognized, “Fans love to buy merchandise celebrating their favorite shows.” Later, she rhetorically stated, “Can’t you just imagine a die-hard fan buying a replica of the Iron Throne for his man cave, or sporting a recreation of Melisandre’s necklace, made with precious metals and gemstones?” As Ms. Farrelly’s statement implies, you could certainly imagine a fan having such a desire.
With that information in hand, it’s important for companies to get their application to the USPTO sooner rather than later. HBO understands this, and as such, has regularly submitted trademark applications before it began using the respective mark, or just before it anticipated the popularity of a certain mark rising. There are, of course, some exceptions. For example, HBO registered HODOR two days after it aired the iconic episode titled “The Door,” which discussed the character Hodor’s backstory just before he selflessly met his demise. This shows that even the world’s most sophisticated entities can’t always preemptively protect their IP. Things happen, and we can’t always predict what’s worth protecting in advance. And the conservative approach is to protect anything that has even a slight possibility of becoming valuable; that approach isn’t practical, or realistic for that matter.
HBO has vigorously protected its Game of Thrones intellectual property. It has proactively registered various marks, opposed the registration of numerous confusingly similar marks, and issued some strongly worded press releases when its IP was utilized by President Trump on Twitter. But although the show has ended, the IP battle isn’t over. Television series like Game of Thrones, and related intellectual property, don’t lose value overnight. You have to imagine that is especially true for the most popular television show of all time, and even more so when there are already five spinoffs in development.
Although HBO has won many Game of Thrones trademark battles to date, the war is far from over. Game of Thrones will be relevant for the foreseeable future, and as long as there are fans and a demand for merchandise, the potential for infringement will exist. How do I know this? Well, to paraphrase the Hand of the King, Tyrion Lannister, “[t]hat’s what I do … I [write] … and I know things.”
See more writing about intellectual property, copyright, patent, and trademark law on The IP Law Blog