Memes, Marks and Mayhem, from Virality to Legal Validity

Meme, a phenomena

“A meme attracts a million impressions, and worth more than expected — but whether are owned or not, and if in affirmation, then who owns it?”

Memes are metaphorically omnipotent in and with current technological advancement involving and engaging with millions. Influences internet culture and trends, generating buzz, and if engaged by any entity may it be brand, aids marketing campaigns. A solitary “meme” possesses the potential to precipitously elevate a brand to widespread prominence overnight and while such virality may, at times, either be serendipitous, yielding gratuitous publicity and immediate cultural relevance, or it may equally result in and as a liability. Further, memes also resist that kind of precision; they are chaotic, unpredictable, and frequently repurposed beyond any recognisable original. An involuntary affiliation, adverse public perception and the erosion of a meticulously curated brand identity frequently accompany such digital phenomena.

Some brands actively embrace meme culture, leveraging viral content to engage younger audiences. Companies like Wendy’s¹ and Netflix² have built social media identities around humour and internet trends, making memes essential to their branding. Others, however, find themselves at the center of unintended viral storms. For instance, the infamous Bernie Sanders mittens meme³, the Drakeposting format⁴, or Pepperidge Farm remembers⁵, all these incorporated images of real individuals, illustrating how memes can escape their original context and take on a life of their own.

From a marketing perspective, memes provide a chance to make brands more relatable and increase presence. However, their decentralised nature makes it challenging for companies to control content about them on these sites. Memes, after all, live on remixing, reinterpretation and wide dissemination, often with no identifiable owner. This is a dissonance for established trade mark structures based on exclusivity and source identification. While companies might love the free publicity, they might also deal with brand dilution or unwanted associations. Facets encompassing these pros and cons are trades which any entity might take to either advance or in plummet of their sales, or other related business activities per se.

Historically, viral slogans and imagery have been successfully trade marked, but memes introduce additional complexities. Their evolution is rapid, their origins are often ambiguous, and their use is inherently collective. Facets encompassing these pros and cons are trades which any entity might take to either advance or in plummet of their sales, or other related business activities per se. And this lead to questions as to law pertaining to such “memes” so published, which includes whether they can be trade marked or copyrighted and if yes then how? Who owns or tend to own them? Whether meme pertaining to any brand, gives exclusive right to such brand on such meme? And many related questions.

Facets pertaining to “memes” as an intellectual property are beyond realm of what existing laws are; and an important question arises that with current techno-legal development of law, whether “memes” are or can be considered any such intellectual property or not. The unhindered law incapacitates the scope of any development, and broadening the realm and scope of such laws will besiege “memes” to be under existing intellectual property law.

Registration of memes, what the law suggests?

Theoretically it is suggested that a meme can be registered as a trade mark in India under the Trade Marks Act, 1999⁶, but it must meet strict criteria. Under Section 9(1)(a)⁷, a mark must be capable of distinguishing the goods or services of one entity from another. Since memes are inherently viral and widely shared, proving distinctiveness can be difficult. One key requirement is secondary meaning, as established in cases like ITC Ltd. v. Nestle India Ltd.⁸, where long-term use and consumer association played a crucial role in determining distinctiveness. If something is used exclusively by a company and becomes synonymous with its brand, as seen in VRS Foods Ltd. v. Prem Chand⁹, it may be eligible for registration. However, exclusivity remains a challenge. In Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories¹⁰, the Supreme Court emphasised that trade mark protection is meant to prevent consumer confusion. Since memes are frequently altered, edited and repurposed, enforcing exclusivity may prove impractical. Further, trade marking memes raises serious fair use concerns, particularly in the context of user-generated content (UGC). The courts may need to distinguish between non-commercial meme sharing (parody, commentary) and commercial exploitation. Borrowing from copyright law’s fair use doctrine, one could argue that memes repurposed without profit motives should be exempt from infringement claims.

A more successful approach may be registering key elements of a meme, such as logos, slogans or distinctive graphics. Brands like Amul, though not officially trade marking memes, have successfully protected their marketing assets that are often memeified.¹¹ Law as provides protection, encompasses enforcement. In particular, Section 29 of the Trade Marks Act, 1999¹² addresses infringement, but taking legal action against widespread meme use could lead to public backlash and potential reputational harm, as seen in international cases like Pepe the Frog. Ultimately, while meme trade marks are legally possible, their practical enforcement remains complex in India’s digital-first landscape.

A meme may be theoretically registered as trade mark under the Trade Marks Act, 1999.¹³ For this proper registration to happen, however, the meme needs to fulfil the requirements of Section 2(zb)¹⁴ of the Trade Marks Act, 1999 whereby a trade mark is required to be distinctive, capable of graphical representation, thereby making a specific distinction between goods or services.

Given the inherently dynamic and rapidly evolving nature of internet memes, the conferment of exclusive rights therein remains a formidable legal challenge. Nonetheless, where a natural or juristic person seeks to obtain trade mark registration over a meme, it is imperative that certain threshold criteria be satisfied. Firstly, the applicant must establish that the meme in question has become inextricably linked to their trade, brand or enterprise, thereby signifying a distinctive nexus with their commercial identity. Secondly, it must be unequivocally demonstrated that the meme has attained secondary meaning, such that the relevant consumer base perceives it as a definitive source identifier, rather than as a mere element of internet culture. Thirdly, and of equal importance, the meme must be shown to be employed in the course of trade or commercial activity, as opposed to mere ornamental or expressive use. Absent such indicia, registrability under trade mark law is likely to be precluded.

The decision in Independent News Service (P) Ltd. v. Ravindra Kumar Choudhary¹⁵ elucidates the judicial stance on meme-based trade marks within the Indian legal framework. The dispute concerned the plaintiff’s well-established trade mark “Aap Ki Adalat”, a television programme renowned for featuring interviews with eminent public figures, and the defendant’s mark “Baap ki Adalat”, a parody thereof. Although the law permits parody and satire under certain exceptions, the Court determined that the impugned mark amounted to trade mark infringement, as it unfairly capitalised on the goodwill and reputation associated with the original mark, thereby causing a likelihood of confusion among the relevant consumer segment.

In a similar vein, the advertising practices of Amul provide an instructive example of how meme-like formats may interface with trade mark law. Amul’s advertisements, often characterised by their satirical tone and humorous commentary on contemporary events, incorporate its iconic “Amul girl” and tagline, both of which enjoy significant brand recognition.¹⁶ While Amul has not sought trade mark protection over individual memes per se, its consistent and exclusive usage of these graphic elements has conferred upon them a strong source-identifying function, rendering them eligible for trade mark protection. This underscores that graphical content, when persistently tied to a commercial identity, may attain registrability under Indian trade mark jurisprudence.

Further, companies such as Zomato and Swiggy have adeptly employed meme culture within their marketing stratagems, crafting brand narratives through the creative appropriation of viral internet trends.¹⁷ Though these enterprises have hitherto abstained from asserting exclusive rights over specific meme content, their adaptive use has facilitated the cultivation of distinct brand identities within the public consciousness. Should such meme-based adaptations accrue substantial commercial goodwill and attain a recognisable association with the respective business source, these entities may, in due course, satisfy the requisites for acquiring statutory protection under the Trade Marks Act, 1999, particularly through the doctrine of acquired distinctiveness.

Determining distinctiveness in meme catchphrases

This part deals with some suggestions as to considering the law in hand, how a meme can be classified as a trade mark, and get protected as an intellectual property. Based on the evolving landscape of internet culture and the increasing trend of monetising viral content, a proposed eligibility test for trade marking memes can be developed using key legal and commercial criteria.

Firstly, the meme or its catchphrase must be distinctive. This means it should be capable of distinguishing the goods or services of one business from those of another. While some memes use common dictionary words, courts and trade mark offices have recognised that even such words, when arranged creatively or used in a unique contextual combination, may acquire distinctiveness. For instance, in Kohler Co. v. Registrar of Trade Marks¹⁸, the Delhi High Court emphasised that taglines or slogans made up of generic words, like “Believing in Better”, can form a distinctive and creative expression when used together. This standard applies to memes as well, phrases like “DOGLAPAN” and “BINOD”, though simple and colloquial, acquired distinctiveness through viral social media usage and public association with specific personalities or platforms.

Secondly, there must be actual commercial use or a clear intent to use the meme or phrase in the course of trade. Trade mark protection is granted not for abstract ideas or expressions of humour but for signs that identify the commercial origin of goods or services. This was demonstrated in instatnces of Ashneer Grover and Slayy Point , where the viral catchphrases “DOGLAPAN” and “BINOD” were used to promote and sell merchandise, books and digital content. In both instances, trade mark applications were filed once it was evident that the meme-based expressions were being used in a manner that created consumer association with a source of goods or services.¹⁹

Thirdly, the meme must not be generic or descriptive in the context of its intended application. While memes are often derived from everyday language and cultural references, their legal protectability as trade marks depends on whether they merely describe a product or service or function as a source identifier. The creative use of ordinary terms in memes can result in distinctiveness when they evoke specific reactions or recognition from the public. This allows such terms to function as trade marks, provided they meet the statutory requirements under trade mark law.

Fourthly, the meme content must not infringe upon existing intellectual property rights, especially copyright or pre-existing trade marks. Many memes use edited images, graphics interchange formats (GIFs) or video clips taken from copyrighted works. While the sharing of memes for entertainment may fall under the doctrine of fair use or fair dealing (depending on jurisdiction), the commercial exploitation of such material can lead to infringement if proper permissions or licences are not obtained. The case of Grumpy Cat Ltd. v. Grenade Beverage LLC²⁰ illustrates this point clearly, where unauthorised use of the Grumpy Cat image and mark beyond a licensing agreement led to the awarding of substantial damages by a US Court for copyright and trade mark infringement. This underscores the need for businesses to ensure that any underlying work used in the meme is either original, licensed or falls squarely within permissible use.

Finally, and most critically, the meme or catchphrase must serve a source-identifying function. This means that the public should associate the meme with a specific person, business or origin. Without this association, a meme would merely be a passing fad or cultural reference, lacking the consistency and recognition needed to justify trade mark protection. Memes like “GRUMPY CAT”, “DOGLAPAN” and “BINOD” all became widely recognisable, and their use in commerce allowed consumers to identify products associated with the original creators. This source-indicating quality is the essence of what a trade mark is meant to protect.

Memes and parody, attributing infringement of trade mark

Jurisprudential consensus emerging from Indian High Courts, the Supreme Court of India and persuasive authorities such as Kerly’s Law of Trade Marks and Trade Names²¹, it is evident that the dissemination of commercial content, including memes through electronic media may give rise to actionable claims of trade mark disparagement, particularly it means to speak of slightingly, undervalue, to bring discredit or dishonour upon, the act of depreciating, derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth and degradation. The psychological impact of visual advertisements, particularly memes that possess the capacity to virally permeate digital platforms, cannot be understated. Such content, if it derogates or ridicules the products, trade names, or trade marks of a competitor, squarely attracts the legal mischief of disparagement under Indian trade mark jurisprudence.

As delineated in Appendix 16 of Kerly’s, Council Directive 84/450²² (as adopted by the European Communities) categorically proscribes comparative advertising that discredits or denigrates the trade marks or trade names of competitors. Clause 3(e)²³ thereof is unequivocal in mandating that comparative advertisements must not tarnish or demean the commercial identifiers of rival entities. When memes, under the garb of humour, engage in objectively misleading or deprecatory comparisons, they contravene these principles and potentially violate Section 29(8)²⁴ read with Section 30(1)²⁵ of the Trade Marks Act, 1999.²⁶

“Infringement of a trade mark is said to take place when another commercial/entrepreneurial body is exploiting that same trade mark.”²⁷ Exploitation of such trade mark can be through memes, and to be considered as an advertisement, as it engages a lot of public.

Parody or in case memes are inherently paradoxical. Good parody is both original and parasitic, simultaneously creative and derivative. The relationship between the trade mark and the parody is that if the parody does not take enough from the original trade mark, the audience will not be able to recognise the trade mark and therefore not be able to understand the humour. Conversely, if the parody takes too much it could be considered infringing, based upon the fact that there is too much theft and too little originality, regardless of how funny the parody is.²⁸

The appropriation and imitation, parody entails are, but of a kind involving a deliberate dislocation. Above all, parody presumes the authority and currency of the object work or form. It keeps the image of the original in the eye of the beholder and relies on the ability of the audience to recognise, with whatever degree of precision, the parodied work or text, and to interpret or “decode” the allusion; in this sense the audience shares in a variety of ways the creation of the parody with the parodist. Unlike the plagiarist whose intention is to deceive, the parodist relies on the audience’s awareness of the target work or genre; in turn, the complicity of the audience is a sine qua non of its enjoyment.²⁹

A balance to strike between free speech and trade mark

The question to be asked is whether, looking at the facts as a whole, and analysing them in their specific context, an independent observer who is sensitive to both the free speech values of the Constitution³⁰ and the property protection objectives of trade mark law, would say that the harm done by the parody to the property interests of the trade mark owner outweighs the free speech interests involved. The balancing of interests must be based on the evidence on record, supplemented by such knowledge of how the world works as every Judge may be presumed to have. Furthermore, although the parody will be evaluated in the austere atmosphere of the court, the text concerned (whether visual or verbal or both) should be analysed in terms of its significance and impact it had (or was likely to have) in the actual setting in which it was communicated.³¹

A global trend, memes, laws and its regulation

Interestingly there exists a pervasive misconception that memes, by virtue of their ubiquitous dissemination, invariably reside within the public domain, such an assumption is legally untenable. While many people think that memes fall within the public domain, because they are so widely found, it does not always ring true, as certain memes, owing to their substantial public recognition and consistent association with particular sources, have successfully obtained trade mark protection. This underscores the principle that widespread cultural currency does not per se negate the possibility of proprietary rights.

In the United States, trade mark jurisprudence is predominantly codified under the Lanham (Trade mark) Act, 1946 (US) (Lanham Act, 1946)³², specifically 15 USC Sections 1125(a)(1)³³ and 1114³⁴. Section 1125(a)(1)³⁵ establishes civil liability for any individual who, in connection with goods or services, employs in commerce any word, term, name, symbol or device likely to engender consumer confusion as to source, affiliation or sponsorship. Conversely, Section 1114³⁶ provides a cause of action for trade mark infringement predicated upon an identical standard of consumer confusion, albeit limited exclusively to marks duly registered with the United States Patent and Trademark Office (USPTO). The USPTO also recognises trade marks for viral catchphrases, such as “Let’s Get Ready to Rumble” by Michael Buffer, showing that distinctive memes can, in some cases, gain legal protection.³⁷

Liability under the Lanham Act, 1946 may materialise in the context of marketing campaigns pertaining to the “memes”, particularly on social media platforms, wherein a business juxtaposes its product with a widely recognisable slogan, or employs without authorisation, the name, likeness or image of a celebrity. While the Lanham Act, 1946 principally safeguards against commercial misappropriation, false endorsements conveyed under the guise of advertising unequivocally fall within its ambit. The potential liability is further exacerbated if the infringement is perpetrated wilfully. Under 15 USC Sections 1117(a)-(b)³⁸, the aggrieved mark holder may seek treble damages in addition to reasonable attorneys’ fees, rendering such infractions not merely reputationally deleterious but also financially onerous.

For instance, should a marketing division utilise the name and photograph of a prominent public figure, such as Taylor Swift, in a humorous promotional post absent her consent, the enterprise may incur immediate exposure to civil liability under 15 USC Sections 1114³⁹ and 1125(a)(1)⁴⁰. And in another instance, Grumpy Cat Limited acquired trade marks on pictures, merchandise and brand endorsements for the internet-famous cat, enabling the company to take legal action against businesses that used the cat’s likeness without permission. Based on this phenomenon, the meme Pepe frog also saw its creator Matt Furie take actions and sue several companies to regain control when it was used without releasing the commercial rights job.

Similarly, in instance of “Doge”, the Shiba Inu meme that gave rise to Dogecoin. The cryptocurrency crowdfunded the meme for its brand purpose, while the rights to the original images remained unsolved. However, the intellectual property rights to the original images were later acquired by the Doge Foundation in an effort to manage and protect the meme’s commercial use. In some specific cases, individual or corporations would file the trade marks, based on variations of the meme phrases, like that of Buffer’s famous catchphrases, showing that occasionally, that viral content has received trade mark status, once it is productively commercialised. Corporations like Netflix⁴¹ and Gucci⁴² also use memes into their marketing, but rather than seeking trade marks, they have strategically used them for engagement.

Whether memes to be protected, a call to legal system

Although netizens might be upset about it, it is possible for internet slang or memes to become trade marks in India, as long as they fulfil the criteria for registration under the Trade Marks Act, 1999. Yet their viral, participatory and modifiable nature makes exclusivity hard to enforce. In rare cases where a meme becomes strongly tied to a commercial identity, brands may seek protection, but any legal strategy must balance enforcement with cultural sensitivity. Aggressive enforcement, especially through takedowns or lawsuits, risks triggering the Streisand Effect⁴³, where attempts to suppress content only draw more attention to it, thereby amplifying its spread and undermining the brand’s intention.

For India, the evolving legal landscape requires more nuanced interpretation of the doctrines of acquired distinctiveness, fair use and the boundaries of trade mark disparagement in the digital age. Memes challenge conventional notions of authorship, control and ownership. As such, the legal inquiry must extend beyond the formal elements of registrability and examine the meme’s role in public discourse, its commercial function, and the proportionality of enforcement efforts.

Ultimately, the question is not solely whether a meme can be trade marked, but whether doing so serves a legitimate legal and commercial purpose. The answer lies in context, consumer perception and the broader cultural impact. Brands must approach the meme ecosystem not as a terrain to dominate but as a cultural environment to navigate strategically, lawfully and with an awareness that in the age of virality, perception often precedes protection.