Meghan Markle’s Archetypes trademark bid not intended to stop simple use of word

Meghan Markle: Commentators share podcast predictions

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Meghan’s move to trademark the name of her upcoming podcast series should not come as a surprise as it is commonplace for brand owners to safeguard their assets in a similar way. Trademark lawyer John Ferdinand, partner at intellectual property firm Marks & Clerk, explained the main reason behind the Duchess of Sussex’s move is to create a “legal monopoly” and prevent others from using that same word in relation to similar goods and services. He told “Applying to register a trademark is part and parcel of launching a new brand, starting a business venture.

“The main purpose of registering a trademark is to be able to provide yourself with what’s called a legal monopoly, an ability to prevent other people from using that trademark in relation to similar goods and services to the ones you are interested in.

“The main point is that if Meghan Markle or their company is successful in registering the trademark, it means they are in a better position to be able to prevent other people from using similar or identical trademarks in relation to the goods and services they have an interest in – podcast and related goods and services.

“Really the idea is to prevent copycats from arising. Obviously, Meghan Markle is a well-known figure and it’s common for well-known brands to attract some copycat activities when they launch new products.

“So the main purpose for applying to register a trademark is to be able to put them in a stronger position to safeguard that kind of asset they are creating.

“And I suppose, from a public policy perspective, if brand owners have exclusives rights they are able to police the markets and that can help avoid confusion in the marketplace or avoid members of the public getting duped into buying the wrong product from the wrong service when really they were looking for the one from the well-known brand.” 

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While the decision to apply for the registration of the trademark of Archetypes has sparked criticism and mockery among critics of Meghan, Mr Ferdinand explained she would not be the first person to trademark a word that has existed in the English language for centuries.

Using Apple Inc, the tech giant founded by Steve Jobs in the mid-1970s, as an example, the expert said: “What’s being sought is an ability to control and use that word in a trademark sense.

“It’s not designed to prevent people from being able to say the word archetypes, for example, or write it in articles and other publications, it is really to be able to control the use of it as a brand, in relation to products and services.

“And in that respect, it’s actually very common for brand owners to register trademarks that basically consist in existing words in English.

“If you look at brands like Apple, for example, apple is just a commonplace word but the important thing is that it is not descriptive of the particular products or services that are being used.” 

Explaining the examination process Meghan’s application will be subjected to, the expert continued: “What will happen is that the application submitted by Meghan or her company will then be examined by the trademark office, in this case the US Trademark Office, and they will do an assessment to whether this trademark is descriptive in relation to the products or services that are being covered.

“And in this case for a mark like Archetypes, I’d say there is no obvious descriptive meaning of that word per se in relation to podcasts for example, so it may be possible for that issue to be overcome and not to be an objection to the trademark on that basis.

“It depends on the examiners’ views of course, but generally speaking it is possible to trademark existing words.”

The application made by Meghan may encounter some issues, however, as other brands may be already holding the trademark of the word archetypes for similar goods and services as the ones she is trying to protect. 

Mr Ferdinand said: “It is possible, especially in the US, that the trademark office can refuse applications if there are earlier trademarks registered by third parties which conflict with the scape of protection claimed by the new application.

“In that case, the trademark office will do a search to identify whether there are earlier right holders out there who have earlier trademarks that conflict with that subject of the application.

“And if there are, then either the trademark office may object and say you can’t have this trademark or can only have it for a more restrictive scape of protection.

“Or the earlier brand owner can also oppose the application, saying they have earlier rights that conflict with the one subject of an application.

“What would happen then is there would be an examination of those issues and either the application will be successful and the issues will be overcome or there won’t be any objection raised concerning older trademarks or there will be a problem – either the trademark won’t be registered or will be registered for a more narrowly-defined scape of protection.”

The existence of other trademarked products also bearing the name Archetypes may not be an issue for Meghan if they have been registered for different goods and services so that no confusion between the two brands can arise. 

However, if the other brand owner has a “really strong reputation” they could still try to object, Mr Ferdinand said, and be successful in their attempt if a risk their earlier reputation may be interfered with by the use of the trademark for Meghan’s podcast is recognised.

Another challenge the Duchess faces with her application is the fact a podcast called The Archetypes Podcast exists.

Examining whether this could provide an issue for Meghan’s move and the owners of that podcast may object to her trademark application, Mr Ferdinand said: “It really depends on the strength of the rights of the owner of that podcast.

“Firstly – have they registered that trademark? If so, they may have a legal right to object.

“Secondly – even if they have registered their trademark, what’s the extent of the use of the trademark they are making? Is it a really popular podcast?

“Importantly in this case, what’s being sought at the moment, and it may well change over time, Meghan is only looking at protection in the US, so the assessment may be whether that podcast is downloadable in the US, has it attracted a large following in the US and is there a basis for objections the owner of that podcast may raise.

“It depends on two things, on the strength of the reputation that that earlier podcast owner has and secondly it depends on the attitude of the owner of that podcast and what is the interest of the podcast. 

“Is it a completely different field of interest being covered, in which case they may not have the rights to object or they may decide there is no risk of confusion between the two because actually the other podcast may have a completely different subject and following.”

The description provided on Spotify for The Archetypes Podcast says the programme was developed by two “soul entrepreneurs born and raised in Boston, Massachusetts” and is a space focused on exploring “self-empowerment through voice, visibility, representation”.

The last episode was uploaded on the platform in November 2019, way before Meghan developed her new series.

Meghan, who with Prince Harry signed a lucrative deal with Spotify in late 2020 to produce exclusive content for the streaming giant, will launch her first podcast in the summer.

During the programme, she will “dissect, explore, and subvert the labels that try to hold women back” through conversations with historians, experts and women who have experienced being typecast, as revealed in the teaser trailer released last month.

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