Considering Use: Narcos, Netflix, and Trademarks
Difference can find confluence in unique places. Here, former drug traffickers meet Netflix at trademark law.
As background, Netflix’s growth in recent years has been impressive, due in part to successful original content like Narcos—a series based on Columbia’s Medellin and Cali drug cartels.
Roberto Escobar—Pablo’s brother and ex-assassin/accountant—thought it unfair that Netflix reap the economic benefits of his family’s story. Trying to obtain leverage, he filed trademark applications before the United States Patent & Trademark Office (USPTO) for terms including “Narcos” and “Pablo Escobar.” These trademark applications sought to perfect rights in all kinds of consumer products.
Although Escobar successfully obtained trademark registrations in “Pablo Escobar”, Netflix drew the line at rights to the “Narcos” mark. The company initiated trademark opposition proceedings before the USPTO Trial and Trademark Appeal Board (TTAB). Earlier this month, Escobar started abandoning several of his “Narcos” trademark applications. Why?
In answer, the parties may be reaching settlement. But Escobar also faces an uphill battle. Netflix is likely correct in arguing that its trademark rights in “Narcos” are superior because Escobar cannot prove prior and consistent commercial use.
To explain, trademark rights originate from specific, demonstrable, and consistent use in commerce. Trademark applicants must prove to the USPTO that they meet these requirements. Escobar’s evidence of such use seems doubtful. Although the use of evidence passed preliminary USPTO examination, it is vulnerable to the tougher scrutiny of Netflix’s TTAB challenge.
An experienced trademark attorney can help a business properly use trademarks, protect trademarks through application and registration, prove commercial use of trademarks, and navigate trademark challenges within USPTO administrative proceedings or litigation.