This Article proposes that memetic theory is a useful lens through which to view trademarks, particularly as there has been a rise in the number of applications for culturally-driven words and catchphrases in the United States Patent and Trademark Office. Memetic theory, or memetics, is a scientific field related to how units of information evolve and replicate. These units of information, called memes, undergo a process of natural selection comparable to that of genes. To survive as trademarks, memes must not only exist in the proper form, but they must also subsist in an environment where replication, variation, and selection exist in appropriate measure. Under current trademark jurisprudence, over-protection and over-enforcement of trademarks pose a threat to the natural selection environment. The recent phenomenon of trademark applications for culturally driven words and catchphrases is but one manifestation of the interaction between memetic theory and trademark law. Applying memetics to trademark law calls for a reassessment of current legal standards. This Article concludes by offering further insight into where to explore the intersection between this incipient science and trademark law.
Shontavia Jackson Johnson, Memetic Theory, Trademarks & The Viral Meme Mark, 13 J. Marshall Rev. Intell. Prop. L. 96 (2013)