[Patent Talk] The Trademark and Design Rights of "Squid Game"

This is a column contributed by our patent attorney Taeyoung Lee to Etoday on November 16, 2021. It discusses the importance of trademark and design rights in the entertainment industry.

[Patent Talk] The Trademark and Design Rights of "Squid Game"

Riding on the explosive popularity of "Squid Game," a second season appears to have been confirmed. The show's success has impressed Korea's drama production capabilities on the entire world, but it has also clearly demonstrated how important intellectual property protection is in the entertainment industry. Countless names parodying the title of the drama have become trendy, and the costumes featured in Squid Game sold briskly online as Halloween costumes.

However, some have pointed out that the content of Squid Game is not protected by intellectual property rights. Squid Game began streaming on Netflix on September 17, 2021. About two years earlier, on August 30, 2019, Netflix had filed a trademark application for "Squid Game" designating online provision of digital content in Class 41, and that application was registered on October 20, 2020.

As Squid Game gained popularity after its release, third parties filed copycat trademark applications: two on September 27, two on September 28 and one on September 29. Netflix then belatedly filed additional trademark applications on September 30 for Classes 9, 16, 18, 21, 25, 28 and 41, and on October 20 for Classes 3, 14, 24, 30, 35 and 43.

In other words, the only intellectual property right Netflix had prepared before the drama aired was a single trademark covering Class 41. Since trademark rights are, in principle, granted to whoever files first under the first-to-file rule, the copycat applications by third parties would ordinarily be registered for classes other than Class 41, and Netflix's later applications would be rejected. Fortunately, given the fame of Squid Game, the third-party copycat applications can be rejected under Article 34(1)(xii) of the Trademark Act, which bars marks likely to deceive consumers.

Meanwhile, Netflix took no action, such as filing design applications, for the costumes and props. Fortunately, under Article 2(1)(i) of the Unfair Competition Prevention Act, Netflix can seek an injunction and damages against sales of imitation products for three years after Squid Game was released.

Although some protection is available under the Unfair Competition Prevention Act...

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LNB IP Law Firm