The SERIAL podcast has a serious trademark problem

Introduction to the Serial podcast

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. Sound familiar? 

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.

Trademark issues faced by Serial

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?

Analysis of the USPTO's decision

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.

The author's interpretation of the term "serial"

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.

Demographics of Serial's audience

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.

The USPTO's alternative argument

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.

The outcome of the trademark issue

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.

Conclusion

The podcast Serial, known for its true crime storytelling, faced trademark issues when it attempted to trademark its own name. The United States Patent and Trademark Office (USPTO) declared that Serial is guilty of being generic, as it describes itself as a series of ongoing radio broadcasts. However, the podcast's audience demographics and the potential double connotation of the term “serial” were not fully considered. While Serial was unable to trademark its wordmark, its composite logos were approved for publication.