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TikTok’s Uncertain Future in the Short-Form Video app Market

Written By: Edgar Guzman

TikTok, a short-form video social networking application owned by Chinese company ByteDance, has amassed worldwide popularity since late 2018. Unfortunately, alongside a rise in popularity, the app has gained controversy with U.S. lawmakers raising “national security and privacy concerns over ByteDance’s ties to the Chinese government.”[1]

In late 2019, a college student named Misty Hong filed a class-action lawsuit in California alleging that “TikTok and its Chinese parent company, ByteDance, neglected their duty to handle user data with care and knowingly violated a slew of statutes governing data gathering and the right to privacy.”[2]

Under the direction of President Trump and the U.S. Treasury, the Committee on Foreign Investment in the United States (“CFIUS”) has conducted investigations into the acquisition of Musical.ly by ByteDance.[3] CFIUS is a committee that “has the power to block or unwind deals involving foreign investors, and the President of the United States has ultimate authority over its decisions.”[4] According to a report by the Congressional Research Service, the statutory process for CFIUS “sets a legal standard for the President to suspend or block a transaction if not other laws apply and if there is ‘credible evidence’ that the transaction threatens to impair the national security.”[5]

The power afforded to CFIUS investigations is evident based on precedent. Based on similar concerns surrounding personal data collection from application users, CFIUS has previously “forced Chinese investors to divest from PatientsLikeMe, a healthcare startup, and Grindr, an online dating platform, both bought by U.S.-based companies.”[6]

In an Executive Order issued on August 6, 2020, President Trump addressed national security concerns surrounding TikTok.[7] The executive order “seeks to ban business dealings with TikTok by any US citizen or organization after Sept. 20,” while a second executive order, signed on August 14, requires “any sale or transfer of TikTok [to] be approved by CFIUS.”[8] In response, TikTok filed a lawsuit against the U.S. government stating that President Trump’s orders are not supported by evidence or due process, and “disagree[ing] with the characterization of TikTok as a national security threat,” further commenting “that the Trump administration ignored all of TikTok’s efforts to address those concerns.”[9] These efforts included “spen[ding] nearly a year working in good faith to give the CFIUS requested details and information about TikTok’s Business.”[10]

For now, the Trump administration demands TikTok operations be placed in U.S. hands and, as an alternative solution, TikTok and Oracle have agreed to become business partners since “Microsoft announced that it will not buy TikTok’s U.S. operations from ByteDance.”[11] While the exact nature of the agreement and whether it will allow TikTok to survive a ban remains unknown, other competitors are taking advantage of the situation, including Facebook’s new Reels feature on Instagram.[12]

 

[1] Paige Leskin, Inside the Rise of TikTok, the Viral Video-Sharing App Wildly Popular with Teens and Loathed by the Trump Administration, Business Insider (Aug. 7, 2020, 2:20 PM), https://www.businessinsider.com/tiktok-app-online-website-video-sharing-2019-7 [https://perma.cc/9FEM-CU69].

[2] Blake Montgomery, California Class-Action Lawsuit Accuses TikTok of Illegally Harvesting Data and Sending It to China, The Daily Beast (Dec. 2, 2019, 5:20 PM), https://www.thedailybeast.com/california-class-action-lawsuit-accuses-tiktok-of-illegally-harvesting-data-and-sending-it-to-china [https://perma.cc/Q5KJ-6CX2].

[3] Katie Canales, The US Treasury is Investigating TikTok over National Security Concerns, Treasury Secretary Mnuchin says, Business Insider (July 29, 2020, 10:17 AM), https://www.businessinsider.com/us-treasury-investigating-tiktok-bytedance-2020-7 [https://perma.cc/VV9B-GWSN].

[4] Jeff John Roberts, ‘A strange power’: The Secretive Presidential Committee that Could Kneecap TikTok, Fortune (Aug. 7, 2020, 8:31 AM), https://fortune.com/2020/08/07/tiktok-ban-trump-committee-foreign-investment-us-cfius/ [https://perma.cc/4T6G-7T3F].

[5] Congressional Research Service, The Committee on Foreign Investment in the United States (CFIUS) Summary (2020) https://crsreports.congress.gov/product/pdf/RL/RL33388 [https://perma.cc/H7T2-YLTE].

[6] Shining Tan, TikTok on the Clock: A Summary of CFIUS’s Investigation into ByteDance, Center for Strategic & International Studies (May 13, 2020), https://www.csis.org/blogs/trustee-china-hand/tiktok-clock-summary-cfiuss-investigation-bytedance [https://perma.cc/XY7B-6RGX].

[7] Brian Fung, Does TikTok’s Deal with Oracle Avert a US ban?, CNN Business (Sept. 14, 2020, 12:06 PM), https://www.cnn.com/2020/09/14/tech/tiktok-deadlines/index.html [https://perma.cc/2R8H-YN5K].

[8] Id.

[9] Nathan Ingraham, TikTok Sues the US Government over Upcoming ban, Engadget (Aug. 24, 2020), https://www.engadget.com/tiktok-sues-us-government-152040736.html [https://perma.cc/2B8P-2MZV].

[10] Id.

[11] Brian Fung & Selina Wang, TikTok will Partner with Oracle in the United States after Microsoft Loses bid, CNN Business (Sept. 14, 2020, 4:29 PM), https://edition.cnn.com/2020/09/13/tech/microsoft-tiktok-bytedance/index.html [https://perma.cc/33GA-8D3M].

[12] Julia Alexander, Instagram Launches Reels, its Attempt to Keep you off TikTok, The Verge (Aug. 5, 2020, 9:00 AM), https://www.theverge.com/2020/8/5/21354117/instagram-reels-tiktok-vine-short-videos-stories-explore-music-effects-filters [https://perma.cc/F58Z-2686].

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Rise and Shine: Celebrity Hubris and the USPTO

Written By: Riane Briones

In a 2010 interview on The View, host Whoopie Goldberg said to superstar celebrity Beyoncé: “You are Beyoncé,” to which she responded, “Thank you.” [1] The now viral clip is a stark reminder that for many celebrities, a name is the equivalent of a brand and a lifestyle. Names have become such a part of their brands that many celebrities attempt to not only trademark their own names, but their children’s names as well as signature phrases they are most recognized for.

In peak 2000s reality TV fashion, socialite Paris Hilton famously trademarked her signature catchphrase “That’s hot”[2], rapper 50 Cent trademarked his stage name for use in virtually everything [3], and even the iconic Michael Buffer phrase “Let’s get ready to rumble!” has a trademark [4]. Trademarking names and catchphrases is popular because, of course, it gains an upper hand in legal disputes, and, in some cases, it allows celebrities to make money off of their names and personas alone, even when they aren’t specifically selling anything. [5] This is especially true considering the age of social media—on various social platforms, celebrities can cash in on their own personas and gather millions of followers just by displaying their daily lives on Instagram, Facebook, Twitter, and TikTok. [6]

But, for all of the success in celebrity trademarks, some have become more difficult to get through the United States Patent and Trademark Office (“USPTO”). Kylie Jenner, of “Keeping Up with the Kardashians,” attempted to trademark the phrase “rise and shine” after a clip of her singing the phrase became a viral meme. [7] Looking to capitalize on the meme’s popularity, Jenner sought to trademark the phrase for cosmetics and clothing. [8]

One would think that the popularity of the “rise and shine” clip would make trademarking it relatively easy. After all, the clip became the fastest meme to reach one billion views on TikTok and it was reenacted by a number of other prominent celebrities [9]. Surely, this would make the trademark a done deal.

However, in spite of Jenner’s popularity, the celebrity has already faced a number of hurdles in attempting to trademark the phrase. [10] Cathy Beggan, owner of cosmetics company Rise ‘N Shine LLC has already come forward to say that she already owns the trademark in relation to cosmetic products and clothing items. [11]

Jenner has not been successful in trademarking “rise and shine” yet, though the applications are still live at the moment so she may in the future, [12] but the legal battle does serve as a reminder of the phenomenon and, oftentimes, controversy, of celebrity trademarking. For the general public, many could not fathom why Jenner would capitalize on the phrase given that it was relatively common already [13].

Celebrity trademarks are often described as “ridiculous” [14] or “bizarre.” [15] But, during a moment where memes and catchphrases can catapult anyone into overnight fame, it feels unsurprising that celebrities want to cash in where they can. Facing backlash from her ultimately unsuccessful attempt to trademark her catchphrase “Okurrr”[16], rapper Cardi B defended herself in a 2019 Instagram video, stating, “Every single time I go to a corporate meeting, every time I go to a TV show, every time I do a commercial . . . you think I’m not gonna profit off this shit? . . . While I’m still here I’m gonna secure all the fucking bags.” [17] She encouraged her followers to capitalize on viral moments as well, saying, “Let me give y’all a secret too. It’s 2019 bitch, there’s a lot of ways to get rich.” [18]

 

[1] Işıl Dulkan, YOU ARE BEYONCE- Thank You, YOUTUBE (Feb. 6, 2015), https://www.youtube.com/watch?v=NdGjylS8p0g [https://perma.cc/7B2H-T54D]; Kristie Rohwedder, Beyonce Has Perfect Response to “You Are Beyonce”, BUSTLE (Jan. 9,2015), https://www.bustle.com/articles/57746-beyonces-response-to-whoopi-goldberg-saying-you-are-beyonce-is-totally-justified-video [https://perma.cc/3CUT-2AJT].

[2] Andrew LaSane, from Cat Names to Fruit, Here Are 11 Bizarre Things Celebrities Have Tried to Trademark , INSIDER (Oct. 22, 2019), https://www.insider.com/bizarre-things-famous-people-have-tried-to-trademark-2019-6#paris-hilton-has-trademarked-her-reality-show-catchphrase-thats-hot-5 [https://perma.cc/QW2S-K8S6].

[3] Id.

[4] Id.

[5] Kaitlyn Tiffany, Why Celebrities Try to Trademark Their Catchphrases and Baby Names, VOX (April 19, 2019), https://www.vox.com/the-goods/2019/4/19/18507920/celebrity-trademark-history-baby-names-taylor-swift [https://perma.cc/W6KD-QS5S].

[6] Rankin, How Celebrities Really Make Money on Instagram: Behind the Secret World of Social Media Sponsorship, E! ONLINE (June 13, 2016), https://www.eonline.com/news/776628/how-celebrities-really-make-money-on-instagram-behind-the-secret-world-of-social-media-sponsorship [https://perma.cc/7SBU-95A9]; Katie Sehl, 10 Reasons Celebrities Are Better at Instagram Than Brands, HOOTSUITE (Jan. 13, 2020), https://blog.hootsuite.com/10-reasons-celebrities-are-better-at-instagram-than-brands/ [https://perma.cc/C9T9-TY34].

[7] Charles Trepany, Kylie Jenner Has Filed to Trademark ‘Rise and Shine’ and Twitter Is So over It, USA TODAY (Oct. 22, 2019, 11:36 PM ET), https://www.usatoday.com/story/entertainment/celebrities/2019/10/22/kylie-jenner-applies-trademark-rise-and-shine-irks-twitter/4067365002/ [https://perma.cc/2FGS-9SSY].

[8] Clevver News, Kylie Jenner BLOCKED from “Rise & Shine” Trademark!, YOUTUBE (Oct. 30, 2019), https://www.youtube.com/watch?v=asDOrgzitUQ [https://perma.cc/C4RZ-XDFZ].

[9] Kylie Jenner: ‘Rise and Shine’ Fastest to 1 Billion TikTok Views, BBC NEWS (Oct. 22, 2019), https://www.bbc.com/news/newsbeat-50137840 [https://perma.cc/7Z2H-TU3R].

[10] Alexandra Canal, Why Kylie Jenner’s ‘Rise and Shine’ Trademark Try May Not See the Light of Day, YAHOO! ENT. (Oct. 26, 2019), https://www.yahoo.com/entertainment/why-kylie-jenner-might-face-hurdles-with-rise-and-shine-trademark-filing-120039211.html [https://perma.cc/3PGD-SU3Z].

[11] Clevver News, supra note 8.

[12] Trademark Electronic Search System (TESS), USPTO, https://www.uspto.gov/trademarks-application-process/search-trademark-database [https://perma.cc/R224-RDZP] (click on “Search our trademark database (TESS),” then click “Word and/or Design Mark Search (Structured),” then enter rise and shine into the first search box under Basic Index in the dropdown menu and Kylie Jenner into the second search box under ALL in the dropdown menu).

[13] Trepany, supra note 7.

[14] WatchMojo.com, Top 20 Ridiculous Things Celebs Tried to Trademark, YOUTUBE (April 14, 2019), https://www.youtube.com/watch?v=4Xzb7i8iWK0 [https://perma.cc/55PR-EJP5].

[15] LaSane, supra note 2.

[16] Daniel Kreps, Not Okurrr: Cardi B’s Application to Trademark Word Denied, ROLLING STONE (July 3, 2019, 9:52 AM ET), https://www.rollingstone.com/music/music-news/cardi-b-okurrr-trademark-denied-855262/ [https://perma.cc/952F-MCFA].

[17] Katherine Gillespie, Cardi B Defends Trademarking ‘Okurr’, PAPER MAGAZINE (March 22, 2019), https://www.papermag.com/cardi-b-defends-okurr-trademark-2632493539.html [https://perma.cc/952F-MCFA].

[18] Id.