Just because someone trademarks a phrase doesn't mean it would stand up in court. Often it comes down to who has the deeper pockets.

 

Letters from lawyers are intimidating enough for most people to run away from something like this.

The sad part in all of this is HBO is actually forced to follow up and protect their "Trade property" against conflicting use, or they run the risk of losing the property. Although they could easily have allowed this autistic artist to display and sell her work with the Winter is Coming title, someone else could then use that "tolerance" of use of their trademark, in court, to force them to allow additional use and effectively a loss of the trademark.

Lawyers...

 

This is an example of corporations abusing trademark law against those that can't afford to defend against it. If someone decided to fight this, it would get thrown out in court because it is a common phrase. But corporations depend on people NOT fighting because defending against these lawsuits are expensive.

The problems are:

1. Trademark (and patent) applications often are not reviewed carefully because those offices are significantly understaffed. We love to talk about "big government" but we need "right size government" to do the job. You have overworked, underpaid, undertrained agents being rushed through tens of thousands of trademark applications. Many get rubber stamped simply because people don't look at them carefully.

2. You have to pay a substantial fee to file a motion against a trademark or patent. So even if you KNOW a trademark is being filed erroneously, you have to pay a fee to file a counter-motion and have it reviewed.

3. Most corporations uses programs to seek out potential infringements and automate everything.  if a human being had come across this, they probably wouldn't have thought twice about it. But because the words were picked up by an algorithm, the algorithm automatically generates the take-down notice. And even though the take-down notice explicitly includes verbiage that the person filing it "personally affirms" that it is a valid takedown, people rarely are involved in these things and the notices are fraudulent. But you have to be willing to fight the fraudulent notice for that to matter.

4. Websites get so many takedown notices that they would go bankrupt reviewing each one individually, so THEY use algorithms to automate the process. Which means thousands of things that are legitimately fair use or not actual infringement get taken down because the algorithm said so.

 

Letters from lawyers are intimidating enough for most people to run away from something like this.

The sad part in all of this is HBO is actually forced to follow up and protect their "Trade property" against conflicting use, or they run the risk of losing the property. Although they could easily have allowed this autistic artist to display and sell her work with the Winter is Coming title, someone else could then use that "tolerance" of use of their trademark, in court, to force them to allow additional use and effectively a loss of the trademark.

Lawyers...

They're only required to enforce it, they don't have to make her pay money or anything. They could just send her a letter saying "you have permission to use it for this pic and nothing else". The only requirement is that they can't ignore it.

 

They're only required to enforce it, they don't have to make her pay money or anything. They could just send her a letter saying "you have permission to use it for this pic and nothing else". The only requirement is that they can't ignore it.

This is actually not true in practice. It becomes a precedent used in court by the next infringer, and much harder and more costly to defend.

You cannot arbitrarily choose to grant exclusions. I've been on this side of a court ruling and it was very painful.

 

I'm all for protecting intellectual property rights against other commercial interests, but this is an appalling abuse. Reminiscent of the municipal gestapo that cracks down on children's lemonade stands for want of a restaurateur's license.
The lack of humanity would make them fitting additions to the villains populating GOT.

 

My understanding is that a catchphrase can be trademarked, but only for the protection of its use in connection with a particular product or service.  The primary role of a trademark is to identify the source of a product or service. So, if I started a store on Etsy selling Winter is Coming t-shirts, obviously referencing Game of Thrones, then I would be in violation of that trademark.

However, let's say I produced an entirely original creative work, like a book or a painting, called "Winter is Coming." In this case, it isn't a catchphrase, it's a title. Titles for creative works fall under copyright law, which says that a title of a book, movie, song, painting, photograph, or other literary work can't be copyrighted.

Of course, I'm referring to U.S. intellectual property laws only. Other countries may have different laws and interpretations.

 

Funnily enough, the phrase Winter is Coming, used in any context whatsoever, is now so inextricably linked with Game of Thrones, it promotes the books and TV show regardless of what you are trying to sell by using it.

HBO should be encouraging everyone to rip it off.

 

"Winter is coming" is registered as a service mark, specifically around "online and retail store services featuring t-shirts, hats, mouse pads, posters, jewelry, bags, drink ware"