"Monkey Selfie" Photo May Venture Into Trademark Territory

During the summer of 2014, everybody on the Internet briefly became a copyright expert, scholar, or commentator as people debated the copyright status of this photo taken by a monkey:

The copyright dispute over this photo revolved around whether the photographer whose camera the monkey stole to take the picture owned the copyright for the photo. The U.S. Copyright Office concluded that the picture could not be copyrighted since it was taken by the monkey, by including a notably-specific hypothetical scenario on page 8 of this vast report.

While the U.S. Copyright Office's say may put an end to the copyright speculation, Craig Whitney of the Socially Aware Blog notes that this picture may end up making its way back to intellectual property debates in the trademark arena.

Whitney highlights this application for trademark status which features a picture that looks strangely similar to the monkey selfie photo. Whitney writes:

A company identified as Saban Capital Group Inc., based out of the British Virgin Islands, has filed an application with the U.S. Patent and Trademark Office to register a trademark in the image of a monkey for use on various types of apparel—including wedding gowns (one can only imagine the market for such an item). The company claims to have been using this image in commerce since August 16, 2010—which we understand is prior to the date that the Monkey Selfie was taken. Nevertheless, the image in question bears a striking resemblance to a certain photograph of a fetching Indonesian primate. But given that no one owns a copyright in the Monkey Selfie, it is unclear whether the Trademark Office or anyone else will seek to prevent a drawing based on the image—if that is what this is—from being registered as a trademark for use on certain apparel.

The trademark application is still in the early stages, and I don't know nearly enough about that area of law to give an informed opinion on the application's merits or whether it may be challenged. But if any law students are reading this post, it might be a good idea to flag this story just in case Intellectual Property professors are considering writing exams on some of the stranger areas of copyright and trademark law.