In relation to the President’s posts, HBO are reported to have said “We were not aware of this messaging and would prefer our trademark not be misappropriated for political purposes.” Trade mark 1514894 “Khaleesi” in class 3 for various beauty and cleaning products including bleach and hair lotions, which is mildly amusing as the character given that title is a natural brunette who wears her hair snow white in the program.Trade mark application 1852035, “GAME OF THRONES” in class 15 for musical instruments including “guitars” and “picks”.Perhaps not all that surprising as there is extensive reference in the program to wine. HBO’s official Twitter account followed up soon after by asking “How do you say trademark misuse in Dothraki?” – referring to a fictional language used by one of the kingdoms or tribes which appear in the show.

What seems clear is that the President used and referenced the show as inspiration for his tweet. Or put another way, when does the referencing of another brand cross the line from inspiration to infringement? As with most claims of IP infringement, the question is whether or not the president went too far. It isn’t unusual to see traders referencing common or well-known brands to gain a foothold or greater recognition in the market. That can be through use of a similar (but sufficiently distinctive) name, similar shaped packaging, wrappers or packaging with the same or similar colouring. It is no coincidence that the shelves in some supermarkets are full of products that have similar shape, colour, style or packaging to their more well-known or expensive counterparts. However, those similar products generally have features which make them sufficiently distinctive or able to be distinguished from the products they have taken inspiration from. The test is both qualitative and quantitative. That is, where a large portion of the earlier work has been copied, or where an essential part of the work has been copied, then there is likely to be infringement.

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