"Trademark owners" of internet cat jokes sue game company for infringement

“The cat memes in Scribblenauts are illegal, claims cat meme duo”

The owners of a couple of the most famous cat memes in internet history are suing Warner Bros. and independent game studio 5th Cell for allegedly using those cats without permission.

Charles Schmidt and Christopher Orlando Torres hold the copyrights and trademarks to “Keyboard Cat” and “Nyan Cat,” respectively.

In a complaint filed on April 22, they claim that 5th Cell’s Warner-published game series Scribblenauts infringes on their cat-centric copyrights and trademarks by using the cat memes without permission in the games, and to promote the series.

The memes have been viewed tens of millions of times. “That popularity makes them extremely valuable for commercial uses. Unlike WB and 5th, many other companies, respecting plaintiffs’ intellectual property rights, regularly pay substantial license fees to use plaintiffs’ memes,” the complaint reads. The filing also claims that “Keyboard Cat” and “Nyan Cat” are used in Scribblenauts by name.

“Keyboard Cat” is a video of Schmidt’s cat “Fatso” (pictured), who’s wearing a shirt and sitting upright while playing a keyboard. Torres’ “Nyan Cat,” is a video of a cartoon cat that has a pink-frosted Pop Tart for a body, with a rainbow trailing behind.

Schmidt and Torres add in the filing, “The ‘WB’ logo also is a meme, even though it is only two letters inside the outline of a shield. Of course, WE employs an army of lawyers who use trademark and copyright law to zealously protect its intellectual property, including its logo.”

The plaintiffs are seeking judgment for damages (plus interest), legal fees and an injunction against the sale and marketing of allegedly-infringing Scribblenauts products.

Well I know of 2 memes now that I will never ever use again.

“Schmidt and Torres add in the filing, “The ‘WB’ logo also is a meme, even though it is only two letters inside the outline of a shield. Of course, WE employs an army of lawyers who use trademark and copyright law to zealously protect its intellectual property, including its logo.””

They’ve got a point.

You mean, WE’s got a point? That’s a terrible sentence. I’m going to use that as a meme now. I mean of course, “We going to use that as a meme now.”

I’m pretty sure that’s just a typo. It’s supposed to be “WB employs”.

Ooooh. I hope that’s not in the official filing, courts don’t take typos into account.

If they’re going to try claiming their memes are trademarks, that’s going to be hilarious. You have to defend against trademark infringement or you lose it, right? In which case it wouldn’t be a meme…

It was Gamasutra’s typo. It’s correct in the filing.

They’re going to claim that their IP is copyrighted and/or trademarked. Whether their IP is a meme is irrelevant.

I am sure WB will settle this quickly, they are clearly in trouble here.

I did note something funny in this line, though I am sure it is an editorial mistake:

…Torres’ “Nyan Cat,” is a video of a cartoon cat that has a pink-frosted Pop Tart for a body, with a rainbow trailing behind.

Note the caps. sounds like Kellogs may have a case. ;>

I think mrcjhicks is referring to the doctrine of genericizism. There is some signficant tension to being a widely-used meme and being a well-monitored trademark. That said, copyright does not suffer from dilution.

That’s right. You can’t be a well-known memeand be trademarked at the same time, it seems to me. Copyright is certainly a different issue, but if they are “and/or”-ing trademarking then they can’t have a clue, can they? But I’m no lawyer.

In America’s totally bonkers copyright law (what is up to 50 years?) I don’t think you have to aggressively go after every copyright infringement to maintain legal standing. WB should just replace the pictures with the URL chillingeffects.org

I am not an attorney, but when you sell stuff you have to have a little background on it…from what I understand, in the US copyright law is 100 years. Trademarks are 10 years and renewable indefinitely.

You have a copyright when you create. You have a trademark when you sell. Both ideas are exclusive of a concept of a “Meme”. Copyrights are ‘works’, trademarks are brands.

Almost anything you see (images) in your lifetime on a T-Shirt is trademarked. “Words” can also be trademarked, like Titles of games, slogans, ‘Tupac’, and such. This is a claim that you have the sole right to sell /license materials with this mark on it (see *). Every ten years you have to claim you are still selling the image/word. I am uncertain of this but I believe you also have to already have engaged in commerce with you mark before it can be official.

*One funny aspect of Tm’s is that they are geographical - so you can be “Joe’s Pizza - The Greatest” in one town and someone else can have rights to that in another. Things sold over the internet quickly have a global reach. If challenged you have to prove where you have sold. Another thing is when you apply for a trademark you have to specify what it applies to, and make exclusions to the mark. So in the “Keyboard Cat” case, you cannot claim you own the selling rights to the word ‘cat’, except when preceded by the word ‘Keyboard’’. Another funny things is that different ‘concepts’ (for lack of a better word), are excluded from trademarks. I think the rule of thumb is one should not mistake one product with the same name for another. So if Catepillar ever made a remote controlled tractor and called it “Keyboard Cat”, they would most likely not be deemed as violating that TM. But perhaps a stuffed animal would.

I have no doubt the Nyan Cat image and word is trademarked. I have seen all sorts of stuff in stores with that image. The owners of the mark are going after WB, because they want the license fees due for the use of the images. I am a little surprised that WB’s lawyers would allow for a game to be released without checking on these things. There possibly have already been license discussions behind the scenes and this is simply leverage to get them to comply.

IMHO, the definition of a “meme” is fuzzy and a little half-baked. But I don’t think it’s incompatible with a trademark. I would consider “Snap, crackle, pop” and “Can you hear me now?” both to be memes. But they are also strongly associated with Rice Krispies and Verizon, respectively. And they are both registered trademarks.

Dilution only becomes an issue when the meme becomes associated with multiple manufacturers. In this case, has anyone else ever tried to sell merchandise with those cats before? I have no idea.

Hot Topic sells all sorts of licensed stuff. Here’s Nyan: http://www.hottopic.com/hottopic/Apparel/TShirts/Graphic//Nyan+Cat+Ninja+Cat+Girls+T-Shirt-124669.jsp?cm_mmc=CSE--GoogShop--Acq-_-Feed&source=CAPLA_DF:124669:HOT&CAWELAID=1515078789&cagpspn=pla&gclid=CPOQrPiP-rYCFa5DMgodHzAAWQ

and here is “Fatso the original Keyboard cat.” from some other place

The fatso shirt makes me wonder about the “Keyboard Cat” trademark.
I looked it up, Schmidt has two marks for Keyboard cat.



What is interesting is they actually are not official trademarks, but are in the filing/registration process. Though he cancelled a previous filing:


And something is going on with Nyan Cat that suprises me. There was a previous TM, but now there is a new one after the old one expired:

the old TM was cancelled:


An someone new (Torres) is trying to get it:


there may be more to this story than we know.