FOX Trademarks 'OK Boomer,' but Can You Own a Meme?

FOX Searchlight has filed an application to secure the trademark for "OK Boomer," the popular catchphrase being used to denigrate members of the generation born between 1946 and 1964.

Trademark lawyer Josh Gerben posted the filing on Twitter, noting that it was for use in a "reality, comedy or game show."

The phrase has enjoyed a dramatic rise in popularity over the last few months, as the election has brought up generational conflicts on how the world is run and what previous generations have left for young people to deal with.

It's easy to see why FOX would want to capitalize on the trend, especially with an unscripted program which typically takes significantly less time and budget to produce.

This is far from the first time a major company has attempted to cash in on a successful meme, and it raises legal questions as to the ethics of intellectual property ownership in the internet age.

FOX is not the creator of "OK Boomer," but they can certainly trademark the phrase in spite of that. The U.S. trademark system under the Lanham Act lets you file "text marks," or combinations of words that are legally protectible, as long as they are not what is known as a "common word" in relation to your product.

The best example of that is Apple Computers—because "apple" is a common word in food products, it would be impossible for an orchard to trademark the word. But it is not a common word for computers and electronics, so the government has granted Apple the trademark in that area.

In 2014, Ultra Pro International filed a trademark application for "Doge," an Internet neologism used to describe Shiba Inu canines. The "doge" meme sprung from a photograph of a female Shiba named Kabuso making a quizzical expression and surrounded by broken English text in Comic Sans, and it spread rapidly to places as far-flung as a cryptocurrency branch and a NASCAR vehicle wrap.

After backlash around the trademark application, Ultra Pro released a statement saying that they only intended to enforce it around specific products—card sleeves, boxes and accessories—and would not block other companies from using the word or the dog's image on non-competitive items. Their application was granted and they continue to sell Doge products.

A common barrier for trademarking memes comes with the associated copyright. In the United States, the creator of the work is granted automatic copyright protection at the instant they make something. That protection gives them the legal authority to block other people from reproducing or profiting from their creation. In the Ultra Pro case, they made an agreement with the Shiba Inu's photographer to financially compensate them for use of the dog's image.

"OK Boomer" has no associated copyright, as the origins of the phrase are murky. It's been traced back to posts from 2015 on controversial message board 4Chan, but exploded in popularity starting in January.

The US Patent and Trademark office does take into account both prior and common use when they review an application. If a mark has entered common use, it can be challenged in court and abandoned. Examples of that include "aspirin," "dry ice" and "thermos," all of which are now common terms and not protected by trademark law.

FOX's filing for "OK Boomer" is likely to succeed based on prior cases, but it remains to be seen whether the meme will still have legs by the time the show makes it to TV screens.