Tim Lince

A couple of months ago, YouTube reached the milestone of 2,000 channels with over 1 million subscribers. On top of that, there are thousands more with subscribers in the six-digit range. A high percentage of these are independent creators boasting growing entertainment brands with paid sponsorships, merchandise and other revenue streams. Despite the commercial nature of many YouTube channels, a significant number lack any trademark protection for the name or logo of their channel – although that could change, with one expert telling us that “in a couple of years you won't be able to find popular YouTubers who don't have a trademark”.

Just a year ago there were only 1,250 YouTube channels with over 1 million subscribers. That figure has nearly doubled in a year, demonstrating the growing reach and influence of YouTubers in shaping pop culture and online discussion. There is money to be made too, of course. One YouTuber, OlgaKayGames, has over a million subscribers (spread across five channels) and reportedly makes $100,000 to $130,000 annually through advertising and merchandise. The most popular independent channel on YouTube, PewDiePie, has a staggering 46.5 million subscribers and earns up to $16 million a year. This money is made through the adverts run before or during videos, sponsorships, merchandise sales, and crowdfunding efforts on websites such as Patreon.

This is all made possible, ultimately, because these YouTubers create content that users want to watch and, in turn, have forged their own personal brands. Many are keenly aware of this – the aforementioned PewDiePie, for example, has an extensive online store, millions more followers on various social networks and his own best-selling book. On top of that, he has at least two registered trademarks (in the US and the EU) for his channel name, displaying a high level of awareness of the value of his brand. However, that is not the case for a large proportion of YouTubers that make the bulk of their income from their channel.

Ryan Morrison, founding partner of New York-based IP firm Morrison Lee, has worked with a number of YouTubers in IP-related disputes. He suggests that the reason many have not invested in registered trademark protection is because, unlike more traditional commercial businesses, they have not been advised to do so: “These people have become rich, successful and popular in very non-traditional ways,” he explains. “That means the usual agents – such as legal representatives – that would be taking a share of their money and advising them properly just haven’t been around or aware that they exist. But brand recognition is a huge reason these stars can keep a following, and a trademark protects that.”

Where there has been a focus on trademarks and IP, this has often been discussion of the negative wielding of rights. For example, in recent months there has been the controversy sparked by the Fine Brothers’ channel (which has over 14 million subscribers) after the creators attempted to trademark the term REACT. More recently, an individual fraudulently filed a trademark for the term DRAMA ALERT to ‘troll’ controversial YouTube user Keemstar. In fact, Morrison Lee recently set-up – in partnership with YouTube channel H3H3 Productions – the Fair Use Protection Account (FUPA). This came about following a recent copyright lawsuit against H3H3 creator Ethan Klein and a subsequent crowdfunding campaign that has raised close to $200,000. The FUPA was initially formed to fund legal defences for YouTubers who are “victims of an unfair copyright takedown” or “have been sent an unfair cease and desist”. However, the fund also covers trademark issues, says Morrison: “It is more of an overall ‘don't mess with our intellectual property, but also don't mess with our proper use of your intellectual property’ – so from brand protection to justified fair use, we have your back.”

What can YouTubers do to protect their brand right now?

Another IP lawyer who has worked extensively with YouTubers is Pete Lewin, an associate at Purewal & Partners in London. He says that, ultimately, YouTube channels that do or plan to commercialise (be it through advertising, merchandise, sponsorship or any other revenue stream) should have brand protection at the front of their mind. However, he acknowledges that cost can then become an issue. “A first time YouTuber might only begin thinking about filing a trademark once their channel has started gaining some decent traction (such as consistent video views or subscription count). A number of other factors may then can come into play, including settling on the channel name or logo and, importantly, whether the financial resources allow it. Because of the international nature of YouTube, it is often advisable to seek registration across multiple jurisdictions at once (particularly the EU and US) and, depending on the scope of the trademark, registration fees can quickly add up. Furthermore, it is important for channels to think about filing for trademarks not only in relation to their current activities (eg, online entertainment services), but also for those areas of business they may be involved in later down the line (eg, merchandise, product lines).”

Beyond the attainment of trademark protection, Lewin advises YouTubers to take IP enforcement seriously too. “One of the most effective ways a channel can protect its brand and preserve its value is to actively monitor for and take appropriate action against infringement – including other YouTube channels, trademarks, websites, domains, video content and merchandise [using their channel's brand elements in an ingringing way]. It is also recommended that channels register any website domains and social media accounts for their channel name as soon as possible, even if they do not intend to use them immediately, to prevent possible problems later down the line regarding domain or account squatting.”

What next?

For brand protection to improve on YouTube, Lewin notes that word needs to spread on why it matters. “Although many YouTube channels have built incredibly successful businesses off the strength of their personal brands, there’s certainly scope for improving general awareness regarding the importance of brand protection,” he explains, highlighting a key area that the IP community, and associations such as INTA or the newly-formed Internet Creators Guild, could play.

Nonetheless, most YouTubers are already aware of the importance of branding (hence the existence of their own unique logos and video openings), and it could be just a matter of time until that awareness translates into tangible legal protection, according to Morrison. “A YouTube channel echoes a lot of other startup businesses, where it's smart to protect your brand as early as possible but you also have to justify the cost,” he concludes. “Your brand is important on the internet and a trademark is one of the most powerful ways to truly protect it – especially on YouTube. [Legal representatives] are coming on the scene more and more right now, and in a couple of years you won't be able to find popular YouTubers who don't have a trademark.”

Until that time, the trademark community would do well to raise awareness of the importance of brand protection and other issues that independent YouTubers could face. 

Shortly after the publication of this article, a YouTuber got in touch to offer their perspective. Kim Justice publishes original long-form documentaries, and currently has close to 18,000 subscribers and over 2 million video views.

She admits that, as a “small-time YouTuber”, a lack of specific knowledge on how to effectively protect her growing channel’s brand is an issue – and this is the same for most small-to-midsized YouTube channels. “It is all a bit of a learning process, but yes - the ‘Kim Justice’ name, logos and so forth are something that I wish to be consistent over all of my various social media channels and anything else that I may produce.” And, in terms of the consideration of seeking registered trademark protection, she added: “It's something to give thought to, but being as the whole thing is an ongoing learning process, I admit to being unaware of the general processes involved with a trademark application. I suppose it also depends on just how far one wants to expand.”

Looking more broadly, she admits that “there is certainly an anti-IP sentiment” on YouTube. “One of the keys to YouTube has always been a certain illusion that everyone on there is an amateur video producer who is purely making stuff for fun. As time goes on and these channels become larger, this is frequently not the case, so things like trademarks and whatnot interfere with that ‘amateur’ image. The rise of YouTube has certainly been rapid over the decade it’s been around, but factors such as education can only truly be measured in real-time; a lot of the reason why trademarks don't get filed is simply because a lot of people don't really know about it or care to. As the site and its creators become ever more professional, it'll happen more often.”

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