Category Archives: Industry Breakdown

Trademark Protections for Podcasts

Inspired by last week’s blog about clearance searches, which used the podcast “Cocaine and Rhinestones” as an example, I was curious about how frequently major podcasts were seeking protection for their names. To do so, I reviewed the top 100 podcasts on iTunes as of today. That won’t identify the 100 most enduringly popular podcasts, but it’s fine as a snapshot of a large group of successful podcasts.

Pod_by_app

Under half of this select group – 43% – have active pending trademark applications or trademark registrations with the USPTO. The most active filers are larger media organizations or those longstanding radio shows like NPR, TED, or the Dave Ramsey Show. More independent podcasts were considerably less likely to have filed.

Apple’s categorizations are a bit more rigorous than randomly assigned numbers, but not much, so the “Subject” category is all over the map. True crime podcasts seem to fall into one of about six categories, and many others are almost as arbitrary. For a representative example, TED Talks Daily is in Education, and TED Radio Hour in Technology.

Pod_by_topic

Full data is included below. This is just a snapshot of the current iTunes top 100, which is almost certainly not representative of podcasts across the board. These are likely to be larger and more successful, and thus more likely than average to be the subject of trademark filings. Some of these with earlier registration dates are registered for radio services or something very closely related; they’re still included below. Interestingly, a few newer independent podcasts filed applications that included a bunch of merchandising goods but not the podcast proper. It’s possible that that lines up more directly with the podcaster’s revenue, but, at least as of 2015, advertisers paid a premium for podcast listeners over traditional radio listeners, and the total podcast advertising market has only grown since then.

Rank Podcast Subject Filed Counsel
1 Oprah’s Master Class: The Podcast Society & Culture Abandoned

86535938

Filed 2015

Jessica Rothstein
2 Fatal Voyage: The Mysterious Death of Natalie Wood TV & Film No  
3 The Wilderness News & Politics Abandoned

86720837

 
4 Dan Carlin’s Hardcore History History 5334719

Filed 2017

Frank Curci
5 The Joe Rogan Experience Comedy No  
6 The Daily News & Politics 87791592 Jordan LaVine
7 Armchair Expert with Dax Shepard Comedy No  
8 Getting Curious with Jonathan Van Ness Society & Culture No  
9 Stuff You Should Know Society & Culture 3983155

Filed 2011

Jim Vana
10 Hidden Brain Science & Medicine 4042777

Filed 2010

 
11 VIEWS with David Dobrik and Jason Nash Comedy No  
12 Serial News & Politics 86454424

86464485

86454420

Filed 2014

Sean Fifield
13 Revisionist History Society & Culture 5259072

Filed 2016

 
14 My Favorite Murder with Karen Kilgariff and Georgia Hardstark Comedy 5519542

Filed 2017

Merchandise

Justin Sobodash
15 Pull Up with CJ McCollum Professional No  
16 Kickass News News & Politics No  
17 This American Life Personal Journals 2266765 and more

Filed 1998

Sean Fifeld
18 TED Talks Daily Education 3766908

and more

Filed 2009

Alan Taboada
19 Minutes to Freedom: A Warrior’s Daily Focus on Journals and Meditations Personal Journals No  
20 Duolingo Spanish Podcast Language Courses 4588574

Filed 2014

Perry Viscounty
21 Blinking Red – The Dan Rather Podcast News & Politics No  
22 Up and Vanished News & Politics No  
23 Oprah’s SuperSoul Conversations Society & Culture 87907738

Filed 2017

Tamara Carmichael
24 S-Town Personal Journals 5323056

5323149

Filed 2017

Sean Fifeld
25 How I Built This with Guy Raz Business 5306698

Filed 2017

Janet Cullum
26 Freakonomics Radio Society & Culture 3954795

Filed 2010

Peter Fields
27 TED Radio Hour Technology 3766908

and more

Filed 2009

Alan Taboada
28 Pod Save America News & Politics 5402998

Filed 2017

Monica Richman
29 The Ben Shapiro Show News & Politics 87743876

Filed 2018

 
30 Up First News & Politics 87377209

Filed 2017

Janet Cullum
31 RISE podcast Business No  
32 Aaron Mahnke’s Cabinet of Curiosities History No  
33 In the Dark News & Politics No  
34 Fresh Air Arts 1683293

Filed 1992

Malcolm Stevenson
35 Something You Should Know Society & Culture No  
36 The Dave Ramsey Show Investing 3145275

3233048

Filed 2005/6

Matt Blackburn
37 Everything is Alive Society & Culture No  
38 Lore History No  
39 Business & Biceps Management & Marketing No  
40 Sword and Scale Social Sciences 5216335

Filed 2016

Heather Sapp
41 Planet Money Business 3734960

Filed 2008

Janet Cullum
42 Nobody Told Me! Self-Help No  
43 Chicks in the Office Society & Culture 87663301

Filed 2017

Elizabeth Sbardellati
44 RISE Together Self-Help 87958397

Filed 2018

Pattie Christensen
45 Radiolab Natural Sciences 3943633

Filed 2010

 
46 Wait Wait…Don’t Tell Me! Comedy 2248094

Filed 1997

Janet Cullum
47 Broken Record Music 88049023

88049021

Filed 2018

Dan Zupnick
48 Shane And Friends Comedy No  
49 Dirty John Personal Journals No  
50 The Good Life with Stevie & Sazan Society & Culture No  
51 Last Podcast On The Left Comedy No  
52 Household Name Business No  
53 Criminal Personal Journals No  
54 Where Should We Begin? with Esther Perel Society & Culture No  
55 Stuff You Missed in History Class History No  
56 The Jordan B. Peterson Podcast Higher Education No  
57 Pardon My Take Sports & Recreation 5269331

5156241

Filed 2016

Jesse Saivar
58 Small Doses with Amanda Seales Comedy No  
59 Cover-Up History No  
60 House of Kim with Kim Zolciak TV & Film Ni  
61 Clear+Vivid with Alan Alda Society & Culture 87639462

87199505

87507635

Filed 2017

Patrice Jean
62 Entrepreneur Stories   Inspiration: Millionaire Interviews Higher Education No  
63 The Gary Vee Audio Experience Management & Marketing 5422311

Filed 2017

Merchandise

David Gold
64 The Tony Robbins Podcast Education 4154395

Filed 2009

John Alspaugh
65 The RFK Tapes History No  
66 The Moth Performing Arts 2674258

Filed 1997

n/a
67 Someone Knows Something News & Politics No  
68 The News & Why It Matters News & Politics No  
69 The Peter Schiff Show Podcast Investing No  
70 NPR Politics Podcast News & Politics 1053082 etc

Filed 1975

Janet Cullum
71 Passive Real Estate Investing Investing No  
72 Slow Burn History No  
73 Invisibilia Science & Medicine 4847419

Filed 2014

Janet Cullum
74 Whine Down with Jana Kramer TV & Film No  
75 Monday Morning Podcast Comedy No  
76 WTF with Marc Maron Podcast Comedy No  
77 Your Art Sucks Arts No  
78 The Tim Ferriss Show Investing No  
79 Fantasy Focus Football Professional No  
80 Freedom Empowered Society & Culture No  
81 Inappropriate Earl Comedy No  
82 Fantasy Footballers – Fantasy Football Podcast Professional 4943334

Filed 2015

 
83 Brown Chicken Brown Cow Podcast Sexuality No  
84 Sleep With Me | The Podcast That Puts You To Sleep Alternative Health 5373936

Filed 2017

Quinn Heraty
85 The Rachel Maddow Show News & Politics No  
86 Guys We F****d Comedy No  
87 The Breakfast Club Comedy 2137981 etc

Filed 1996

Lesia Skrypoczka
88 % Invisible Design No  
89 The Teacher’s Pet News & Politics No  
90 Happier with Gretchen Rubin Self-Help No  
91 Casefile True Crime History No  
92 Atlanta Monster Society & Culture No  
93 Jocko Podcast Management & Marketing 87895857

Filed 2018

Charles Halloran
94 Anna Faris Is Unqualified Comedy 87120326

Filed 2016

Merchandise

Kenneth Feinswog
95 Serial Killers Society & Culture No  
96 Curious with Josh Peck Comedy No  
97 Crimetown News & Politics 87977821

87228301

Filed 2016

Douglas Wolf
98 Why Is This Happening? with Chris Hayes News & Politics 87866775

Filed 2018

David Hazlehurst
99 The Goal Digger Podcast – Marketing, Social Media, Creative Entrepreneurship, Small Business Strategy and Branding Management & Marketing No  
100 The Science of Happiness Social Sciences No  

Immigration-Related Trademark Filings

Immigration has been in the news frequently over the past few years, and increasingly so in 2017. We took a quick look at whether the rate of immigration-related filings at the USPTO has changed markedly over the years in a way that reflected the political salience of the issue. The search was limited to a handful of immigration-related terms in the descriptions of goods and services, and is not anywhere close to a definitive count of all marks filed for immigration-related products or services. Just for one example, the search does not even try include broader descriptions of services, like “legal services,” that could encompass immigration-related services, like immigration law.

Recent years have certainly seen an uptick in immigration-related applications, surging from fifty a year in the 2000s to around 150 per year in the last three years. The following chart summarizes the increase in average yearly application rates.

immigration by year.png

While the trademark application rate for specifically immigration-related products and services has increased significantly, it has not increased in relation to the increase in overall trademark filings. The following chart normalizes both immigration-related filing activity and overall filing activity. While not exactly in lockstep, the ratios are quite similar; if anything, overall filing volumes appear to have jumped more than immigration-related filings.

immigration normalized.png

Charities’ Trademark Filings

Like any other venture, charities have trademark rights. Charities’ names and logos are important assets, and consumer confusion (especially donation-related scams) can be a significant problem for many charities. With that in mind, we took a look at how the twenty-five largest charities in the US treat their trademark portfolios.

There is as much variation in the charities’ trademark protection strategies as there is in the organizations’ charitable missions. Some, like the United Way, St. Jude, and Cru, are very active applicants with numerous trademark registrations and pending applications; others, like the Task Force for Global Health and the Patient Access Network Foundation, have little to no registry presence. There were no obvious correlations between trademark filing decisions and the nature of the charity, its geographic focus, or its religious affiliation or lack thereof.

The graph below is normalized: blue shows the charity’s revenue, red total US trademark filings, and yellow 2016 trademark filings.

CharitiesRevenueFilings.png

For the curious, the non-normalized data follows: it includes not only the three categories charted above but also the “expense ratio” from CharityNavigator.org — the percentage of revenue spent on the stated charitable goal, at least for those organizations required to publicly report that data. CharityNavigator.org has many additional metrics that normalize expense ratios across different types of organizations, which may necessitate very different cost structures.

Organization Revenue Active 2016 Expense Ratio
United Way Worldwide $3,708.00 174 16 91.60%
Task Force for Global Health $3,154 0 0 not rated
Feeding America $2,150 49 3 98.50%
Salvation Army $1,904 77 2 not rated
YMCA of the USA $1,202 74 1 not rated
St. Jude Children’s Research Hospital $1,181 210 14 69.20%
Food for the Poor $1,156 7 0 95.70%
Boys & Girls Clubs of America $923 32 0 81.80%
Catholic Charities USA $921 2 0 78.20%
Goodwill Industries International $902 82 7 not rated
Habitat for Humanity International $829 40 1 81.90%
World Vision $825 40 2 83.90%
American Cancer Society $810 79 6 59.90%
Patient Access Network Foundation $801 1 0 not rated
Compassion International $799 22 2 83.10%
Direct Relief $775 5 0 99.20%
Americares Foundation $740 32 2 97.90%
Lutheran Services in America $723 7 1 not rated
Nature Conservancy $646 35 4 71.20%
American Heart Association $634 97 11 78.70%
American National Red Cross $624 46 0 90.10%
Samaritan’s Purse $565 19 0 88.30%
MAP International $545 15 0 99.20%
Step Up for Students $521 0 0 98.90%
Cru $514 217 6 not rated

Marijuana-related trademark filing trends

The US Patent & Trademark Office will not register trademarks for drugs that are regulated under the Controlled Substances Act or for related paraphernalia. 21 U.S.C. §§801-971; TMEP § 907. That does not stop applicants from applying for a wide range of marijuana-related products and services, and many products that are not the drug itself nor paraphernalia are registrable. Direct registration protection for marijuana products is available via state registries. This blog post looks at filing trends in the USPTO’s federal registry.

California legalized medical marijuana in 1996, with several Oregon (1998) and Main (1999) following suit. Six states legalized medical marijuana in the 2000s and nine more did so in the 2010s. Recreational legalization began with Colorado and Washington in 2012 and has since expanded to nine more states.

mjtrends

Marijuana-related trademark filings on the federal level did not exactly match up with state-level legalization trends, possibly because legalization tends to require slow and bureaucratic rulemaking. Federal trademark filings started to accelerate in 2009, and really skyrocketed in 2014.

Most federal trademark filings are focused on a handful of classes. The chart below shows filings where the mark, the mark description, or the description of goods contains certain “single-purpose” marijuana-related terms. For instance, “cannabis” was included as a search term but not “joint,” whose primary use is not marijuana-related.

The key classes were:

  • Class 5 for medicines; these will presumably be almost uniformly refused under the Controlled Substances Act;
  • Class 25 for clothing; these “merchandising” or “messaging” products are generally accepted by the USPTO;
  • Classes 30-34, presumably for edibles; these also face an uphill battle under the CSA;
  • Class 35 for retail services, which will face CSA issues, and online review/recommendation services, which should be OK;
  • Class 41 for entertainment services, generally OK; and
  • Class 44 for medical services, largely on the medical marijuana side of the industry, and which generally face CSA issues.

201617mjfilings

As state-level legalization efforts continue, it is possible that Congress will amend the Controlled Substances Act to permit limited intellectual property protections for marijuana-related products and services in states where they are legal. Until then, applicants in the marijuana industry will have to seek as much federal trademark protection as they can for ancillary products or for merchandised goods, and rely on a patchwork of common-law rights and state trademark registrations to protect the brand identifies of their core products.