Intellectual Property Trademarks

Trademarks Are Coming: Protecting ‘Milk Of The Poppy’ From Game Of Thrones

Those familiar with HBO’s hit show, Game of Thrones, undoubtedly are familiar with the term “Milk of the Poppy,” the medical drink used as both a painkiller and an anesthetic to help those throughout the Seven Kingdoms who have suffered from severe injuries. Recently, the term was used in the Season Four finale, “The Children,” when Grand Maester Pycelle suggests giving The Mountain the opiate after his gruesome battle with the “Red Viper,” Prince Oberyn Martell of Dorne.

Milk of the Poppy is not only viewed as the healing drug of choice for the Seven Kingdoms; it also viewed as another way for HBO to bank off the success of the network’s most popular show since Tony Soprano was struggling to juggle the conflicting requirements of his “two families.” HBO is the registered trademark owner of “Milk of the Poppy” for international classes 21 and 25. This allows the network to exclusively use the phrase on mugs and clothing (namely t-shirts), respectively.

A trademark is a word, phrase, symbol or design, or combination thereof that allows consumers to identify and distinguish the source of the goods or services of one party from those of another. As the exclusive owner of a trademark, a registrant is granted the exclusive right to use the trademark in connection with the goods and/or services listed within his or her’s registration. Those seeking to register a trademark may apply do so on the United States Patent and Trademark Office’s (USPTO) website. In addition to the exclusive right to use the mark nationwide, owning a federal trademark registration provides several advantages, such as: (1) public notice of your claim of ownership to the mark; (2) the use of the registration as a basis to acquire registration in foreign countries; (3) the right to use the federal registration symbol ®; and (4) the ability to bring an action concerning the mark in federal court.

A federal registration is not the only means in which a person or entity can protect the use of their trademark. Owners may also seek to protect their mark through common law. In order to benefit from this route, the owner must be currently using the mark in commerce and must show that he/she/it was the first to use the mark within the geographical region. However, common law trademark rights are not preferred as they apply only to the geographical area where the mark is currently being used and do not offer the aforementioned benefits of a federal registration. Furthermore, common law trademark rights do not grant the ability to recover statutory damages (as defined within the Lanham Act), attorneys’ fees, or treble (triple) damages for willful infringement.

It is not uncommon for celebrities or networks responsible for high-profile shows to seek federal registration for words or phrases that they have made popular. In 2010, hotelier and socialite, Paris Hilton, sought federal registration for her catchphrase, “That’s Hot,” for use in the fields of music, video, and film; she further supplemented her application in 2013 in order to use the phrase in connection with alcoholic beverages such as wine and champagne. Another example is Mike Sorrentino of the hit MTV reality show, Jersey Shore. The reality star sought federal registration for his nickname, “The Situation,” for exclusive use in association with smartphone applications regarding fitness and exercise, as well as exclusivity for bathing suits, underwear, and other merchandise.

Now that total viewership for Game of Thrones has reached 18.4 million people per episode, expect HBO to seek registration for other phrases and words made popular from the show in order to exclusively benefit by placing aspects of the show in stores worldwide, thus allowing the network to keep the show at the tip of viewers’ tongues as they impatiently wait for the show’s fifth season. As intellectual property lawyers say: “Trademarks are Coming.”