“Serial tells one story – a true story – over the course of an entire season. Each season, we’ll follow a plot and characters wherever they take us. And we won’t know what happens at the end until we get there, not long before you get there with us.”
For avid podcast listeners, this segment is the unmistakable preamble of the podcast Serial. For Examining Attorneys at the United States Patent and Trademark Office (USPTO), this intro is incriminating evidence of a trademark crime no podcast has ever explored. The crime of genericism.
On March 26, 2018, the Trademark Trial and Appeals Board (the Board) decided that Serial could not trademark the podcast’s own name. Serial, the podcast that has been downloaded over 175 million times since its debut in October 2014 making it a global sensation. The podcast that became investigative journalist Sarah Koenig’s most epic brainchild by tuning the world into the fascinating case of Adnan Syed and whether or not he is guilty of murder. Guilty of murder or not, the USPTO declared that Serial is guilty of being generic, a term that the relevant purchasing public understands primarily as the common name for the goods it describes. TMEP 1209.01(c). Generic terms must be refused because others might use those words in the public domain. The argument here: that Serial describes itself, a series of ongoing radio broadcasts, and is, therefore, generic. But is it?
For the 175 million Serial listeners out there, you generally fall into one of two camps: (1) you sympathize with Adnan eagerly awaiting his new trial or (2) you hold steadfast to defend his conviction as a murderer. If you have yet tuned in, maybe a friend told you about the podcast series, or you saw it referenced on Saturday Night Live or your kids saw the Serial logo on Sesame Street. Regardless if you have listened or not, Serial seems to have infiltrated entertainment culture and become a household name. It has become so widespread that even Big Bird sings about it. Clearly, Serial is deserving of its own trademark with such a presence in the airwaves and a following in the media. According to the USPTO, not quite.
Remember that radio show “Sergeant Preston of the Yukon?” or that one about the rancher who uses an airplane to fight crime called “Sky King?” No? Maybe? The USPTO cites these 1950s radio shows as popular “ongoing audio programs,” or serials, as comparisons to the modern Serial podcast. Because these older audio shows, despite their popularity having fallen off the map, described themselves as serials, that term became off limits for trademark protection because it described a commonly understood media of entertainment. Again, this is the 1950s. The Board cites a few recent examples such as “Minutiae” (2016) and “The Bellingham Bean” (2014) where “serial” is used to describe radio drama series, however, their commonness is questionable.
The USPTO measures “common understanding” as it is perceived by the “relevant purchasing public.” Who is the relevant purchasing public? And what exactly is their common understanding? The USPTO relied on old and obscure radio broadcasts to determine that the relevant purchasing public must be any radio listener, and that their common understanding must be of any broadcasted audio show that expands as far back as the 1950s. But Serial is not just any audio show.
Serial first aired in October 2014 and wrapped up its first season of 12 episodes in December 2014. Investigative journalist, Sarah Koenig, set out to reopen the case of Adnan Syed, a now 33 year-old who was convicted of strangling his school ex-girlfriend, Hae, at 18. Adnan’s friend, Jay, came forward and told police that he had helped Adnan bury Hae after she was murdered. Her body was found several months later by a construction worker in a shallow grave in the woods. The story becomes fuzzy after that. Adnan claims he is innocent, his defense hinging on that fact that he cannot remember the day that Hae disappeared. Jay insists that Adnan is guilty but his story changes many, many times.
Perhaps it is the popularization of “serial killer” in entertainment that caused me to associate the Serial podcast with the description of repeated behavior such as serial killings or serial murders, and not an episodic radio show. As the podcast progressed, I personally wondered if the name was suggestive of Jay’s serial lying as his story changed over and over again. Or if the term “serial” referred to a pattern of Adnan’s behavior that may reveal himself to be a serial killer. The podcast even speculates on the involvement of a third party serial killer that reinforced the association of the podcast’s name to a pattern of killings, and not a series of episodes through which the story was told.
“Serial” is defined both as “happening one after another in time or order”, like a pattern of behavior, and as “a story printed in a newspaper… or broadcasted on…radio in several parts.” The opinion published by the Board focuses on this second meaning and altogether ignores the implications of the first. In fact, the opinion seems to dismiss any differentiation between the two explaining that “serial” as a noun or adjective essentially means the same thing. However, “serial” very much has two different meanings when given context. Serial killers and serial radio dramas are not commonly understood equally. In fact, the ongoing radio broadcast defined by the USPTO as a serial, has been replaced by the more contemporary and commonly understood term: podcast.
The relevant purchasing public of the Serial podcast is not, as the USPTO seems to believe, just any contemporary listener. Relevant listeners are podcast listeners , 44% of which are made up of Millennials (ages 18-34) and 33% are made up of Gen X-ers (ages 35- 54). Only 16% of listeners are 55 or above, the group relevant to the 1950s “Sergeant Yukon” era. Serial, the once contemporary term for ongoing radio broadcasts in the 1950s, is only contemporary to 16% of listeners now. The other 77% exist in the era of the podcast.
So what does this mean? Did the Board get it wrong? Perhaps. Genericism is contextual and relies on how the parties decide to define the relevant purchasing public, among other things. Had counsel for Serial redefined the USPTO’s definition of relevant purchasing public to include only modern podcast listeners, then maybe Serial would not have been charged with being too generic. So it goes, if only Adnan’s attorney had investigated his alibi that was offered up by a witness, maybe he would not have been convicted with murder.
The USPTO alternatively argued that “serial” was too descriptive, meaning that the Serial podcast used “serial” to described the goods it offered and failed to acquire distinctiveness from this description as a brand. If “serial” were to mean only a series of ongoing radio broadcasts, then, yes, the USPTO could be unchallenged here. However, “serial” clearly has more than one potential meaning as described above. Here, the Serial podcast could very well refer to the serial behavior attributed to Jay, Adnan, or some third party rampant killer. This second interpretation means that Serial is capable of a double connotation. According to the Trademark Manual for Examining Procedure, when a term is capable of more than one interpretation, better known as a double entendre, it cannot be refused on the basis that only one of those interpretations is descriptive. Hence, Serial cannot be refused a trademark simply because one of its connotations describes the audio broadcasts it provides when an alternative connotation exists too. TMEP 1213.05(c). Unfortunately, this argument was evaded and Serial goes down in the books as both generic and too descriptive, not so unlike the mysteriously evaded investigation into Adnan’s alibi.
But all is not lost. While the USPTO refused to publish Serial’s wordmark, the USPTO decided to publish Serial’s composite logos as shown below.
The USPTO found that the collective impression created by the rounded rectangular backdrops of each letter in the Serial logo was distinct. Due to its popularity and capacity for replication in the media, as evidence by Saturday Night Live, Sesame Street, and others, the unique commercial quality of the visual logo found grounds to be preserved. Like the message that Koenig drilled home in each episode of the podcast, there is never just one side to a story.
Marisa graduated from Saint Mary’s College in Notre Dame, Indiana in 2016. She earned her Bachelor of Science in Biology Magna Cum Laude. While at Saint Mary’s, Marisa spent two summers as a research assistant for the University of Notre Dame’s Environmental Research Center studying wild mice foraging behavior and pollinator interactions.