Serial is an award-winning podcast narrated by journalist Sarah Koenig. It is a long-form story examining a criminal legal case. Season 1 focused on the 1999 murder of Hae Min Lee and the resulting conviction of her former boyfriend, Adnan Syed. Season 1 was downloaded over 100 million times, and is even credited with creating a renaissance in podcast interest. Season 2, which concluded last week, was focused on Bowe Bergdahl, a soldier accused of desertion. Serial's website describes the podcast as a program that "tells one story...over the course of a season" and brings a new chapter each week.
Not surprisingly, Serial's producers applied to register Serial trademarks. In all, five applications were filed. One was on the standard character mark "SERIAL." Two were on a stylized "S" – one black-and-white and one in color. Likewise, there were two that spelled the word in slightly stylized form – once again, one black-and-white and one in color. Other than the "S" marks, all of the marks were rejected by the United States Patent and Trademark Office (USPTO). That is because, according to the USPTO, the word "Serial" is understood to be "an audio program that is broadcast in separate parts over a period of time." The USPTO concluded that the term Serial "immediately describes a feature or characteristic of the applicant's services, specifically, the applicant's ongoing audio program is a serial and features a story that is broadcast in installments." Put differently, because the Serial podcast is presented as a "serial," the show's producers are precluded from obtaining a trademark registration.
Attorneys – especially intellectual property attorneys – would not find this result exceptional. But it does highlight a problem facing content creators and others when choosing the brand they intend to work under: those names have to be sufficiently distinctive. Here the Serial brand name is descriptive, resulting in the producers of one of the most popular podcasts ever – one known to have over 100 million followers – possibly being unable to protect the podcast's name. What will happen when someone else releases a podcast called Serial or using "serial" in its name (Crime Serial, Legal Serial, Serial Case, etc.)? It may not be long before we find out.
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