Imagine That IP Law Blog

Like other areas of law, intellectual property (IP) is often depicted as part of a plot point in popular culture, such as movies and television. In addition, lP is often mentioned in the mass media, particularly when any “high-tech” news is of interest. However, unlike some other areas of law, popular culture often gets IP wrong. And in some cases, very wrong.

This article explores how popular culture handles IP, often gets it wrong, and sometimes gets it right.

The “IP Mix-Up”
One of the most common ways that popular culture makes mistakes when discussing IP is by confusing the different types of IP rights, and what those IP rights protect.

For example, some may recall the reality show "The Simple Life" starring Paris Hilton and Nicole Richie, that aired from 2003-2007. During the course of the show, Paris Hilton used the catch-phrase “That’s Hot!” The catch-phrase reached a level of renown and popularity for a time, and Ms. Hilton sought to protect that phrase. A news report on the subject at the time stated “It looks like Paris Hilton has patented the phrase ‘THAT’S HOT.’ What will these celebrities think of next?”

Similarly, well known branding maven Gene Simmons and sometime bassist of the rock band KISS is quoted as saying, “If it can say KISS on it, it should say KISS on it.” Entertainment television reported, “Rock front man Gene Simmons has copyrighted the word KISS for everything in the band’s vast merchandising empire.”

It is not uncommon for movies and TV to refer to “patenting” or “copyrighting” a word or phrase. However, this improperly conflates the IP rights protected by copyright, trademarks and patents.

To start to untangle the confusion, the Patent Act provides that “anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may obtain a patent.” 35 U.S.C. § 101. Patent protection does not extend to words or phrases, however. Therefore, no matter how popular, clever or unique a phrase may be, the word choice itself cannot be protected by a patent.

The Copyright Act protects works of authorship. 17 U.S.C. § 102. Such works include books, articles, short stories, and comic books. In order to be protected by copyright, the work must be “fixed” in a tangible medium, which generally means written down or, more likely, saved electronically. However, “words and short phrases such as names, titles, and slogans” are not subject to copyright. 37 C.F.R. § 202.1. One copyright case considered whether the name "Pechu Sandwich" for a chicken sandwich could be protected by copyright, and the court correctly found that it could not.

Finally, we arrive at trademark protection. Under federal trademark law, trademarks protect “any word, name, symbol, or device, or any combination thereof,” used by a person or company in commerce, to identify and distinguish the source of goods or services. 15 U.S.C. § 1127. One important aspect of trademark law is that trademarks must be used in connection with something- a good (product, article) or a service. Simply coming up with a catchy phrase is not enough, no matter how catchy or “hot” that phrase may be. A person or company has to use that phrase to “mark” and offer a product or service. The fancier way of saying this, is that a trademark is not a right "in gross.”

Sure enough, Ms. Hilton has obtained federal trademark registrations on “THAT’S HOT” for various goods, such as apparel and even a TV series.

Of course, the rock group KISS has many “KISS” trademarks, on everything from books to wine to smart watches.

Trademarks are therefore the correct IP right to refer to when discussing protecting a word or phrase that is used with a good or services.

Not Appreciating How IP Works
Another way that popular culture sometimes gets IP wrong is by failing to appreciate how IP protection actually works.

The popular TV series “Suits,” a show about a high powered law firm, focused on IP in a few episodes. Season 1, Episode 2 of the show, “Errors and Omissions” (2011), has a patent-centric subplot. In the episode, a satellite phone prototype was the subject of a multi-million dollar legal battle. As negotiations heated up, lead partner Harvey Specter orders his protégé, non-lawyer (one has to watch the show for a full understanding) and first year “associate” (again, you have to watch) Mike Ross to rush back to their law firm and file for a “patent claim” on the prototype as quickly as possible. Mike, who is not only not an attorney but has never filed a “patent claim,” was naturally quite anxious. Ultimately, Mike obtained assistance in filing the “patent claim.” Unfortunately, Harvey informs him that the “patent claim” had been denied because he had just been informed that a third party filed a similar, competing “patent claim” hours earlier.

A few things here require correction. Before diving in, a patent has a set of claims at the end of the patent defining the invention. However, patent applications are not referred to as “patent claims,” and it is likely that this phrase was used by the show “Suits” to make it sound more action-packed and similar to filing a lawsuit.

In order to practice before the United States Patent and Trademark Office (USPTO), an attorney or patent agent must take and pass the Patent Bar, and become either a registered patent attorney or registered patent agent. The attorneys in the show “Suits” could not have filed a “patent claim,” regardless of their diligence.

Where the show departed perhaps to the greatest degree from reality was how it handled the timing of the patent process. In the show, in a 24-hour period, the “Suits” attorneys filed a patent, had it rejected by the USPTO, and filed an “interference claim.” As any patent attorney or patentee can tell you, the patent process is a long one. Based on “Patents Pendency Data March 2025” currently posted at the USPTO website, the average number of months from a patent application being filed to the date a First Office Action is issued by the USPTO is 22.5 months. The average  total pendency (from filing to a final disposition such as an issued patent or abandonment) is about 25.6 months. Accordingly, the “”Suits” show was off in this respect by about, at least, 20 months. The “Suits” attorneys would not have been informed the same day that they filed their patent that it was “denied.”

In addition, patent applications are kept secret until they are published eighteen (18) months after the filing date. It would have been impossible for the USPTO to have informed the “Suits” attorneys about the information relating to a competing application.

 For an IP attorney, it was exciting to see an entire TV show episode dedicated to patents, and absent a cliff-hanger, an episodic TV show has to wrap things up within the same episode. However, any client watching this episode of “Suits” may have become more demanding of their patent attorney, who may not have been able to get a patent the same day it was filed.

Another area where popular culture often misconstrues the impact of IP rights has to do with compensation for use of someone’s idea or invention. For example, reports in the early 90s might have said something like “every time you say the word ‘Windows,’ Bill Gates gets a royalty.” Or perhaps a character in a movie will complain about a company taking a term out of the public domain, and now “we will all have to pay 10 cents every time we use that word.”

In order for there to be an obligation to pay a royalty, a few things would have to happen. Absent a license agreement where a party agrees to pay a royalty, or a lawsuit, simply saying a word should not result in a royalty. One exception would be, using the examples above, if a competitor advertised “Our operating system is 10x faster than Windows!” and testing showed the competitor’s operating system was 10x slower than the Windows operating system. That could be actionable false advertising resulting in a damages award.

Taking the Time to Get it Right
The movie “The Current War” (2017), starring, among others, Benedict Cumberbatch (Thomas Alva Edison), and Nicholas Hoult (Nikola Tesla), told the story of the 19th-century “current wars,” a battle between George Westinghouse and Thomas Edison regarding which electric power delivery system (alternating current (AC) or direct current (DC)) would become the standard in the United States.

The movie did a good job of discussing Edison’s use of his many patents to block competition. In addition, the movie discussed Tesla becoming disenchanted with Edison, and licensing his own patents to George Westinghouse. Both of these patent-related incidents helped to drive the plot of the movie, and in both cases, the discussions surrounding use of patents in business deals rang true.

Final Thoughts
As discussed above, IP is a topic of interest that crosses over into popular culture, and will very likely be discussed even more as technology expands into everyday life, and with the growth of artificial intelligence. It will be interesting to see if IP is treated properly by Hollywood and the mass media.

Reprinted with permission from the June 24, 2025 issue of The Legal Intelligencer ©2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.