The Fine Bros spark fury over plans to trademark YouTube 'reaction videos'
17 February 2016 by Michael Downing
The creators of one of YouTube's biggest channels are currently engaged in an explosive internet controversy surrounding their usage of copyright and trademark law
The first week of February 2016 will always be remembered as one of the most controversial sequence of days in all of online video history. Why? YouTube creators Benny and Rafi Fine of the popular The Fine Bros. channel tried to introduce a new program called React World, which would allow other creators to license their own versions of the "react" video format popularized by The Fine Bros.
The Fine Brothers are YouTube producers best known for their React series in which people watch online clips and respond. The reaction videos feature a group of people, for example children or YouTube personalities, looking at an object or video and speaking about it.
The format is enormously popular on YouTube, and countless content creators and even US chat show host Ellen DeGeneres, has been seen to produce videos in this style.
The Fine Bros had been trying to trademark the generic word “REACT” and after their actions went viral, the internet decided to collectively rage against them and the controversy was so big that a ton of fans decided to unsubscribe from their main channel.
Since then they have now decided to drop their controversial "react" trademark claim and ditched the planned React World initiative.
In a statement they issued a full apology "we built a system that could easily be used for wrong. The reality that trademarks like these could be used to theoretically give companies (including ours) the power to police and control online video is a valid concern, and though we can assert our intentions are pure, there’s no way to prove them."
The network, which was launched by brothers Benny and Rafi Fine in 2007, is one of the most popular on YouTube, with 14 million subscribers. And to say the announcement of React World backfired would be quite an understatement – this outcry has resulted in their follower count to dip from over 14 million to 13.9 million at the time of writing.
In a video update posted after the dispute began, the brothers stressed that they were not trying to trademark the reaction video genre itself, but just their particular format. The pair emphasised that their trademark application on the word “react” did not mean they would “run around and start taking down videos.”
A couple of weeks ago, the brothers announced a licensing scheme called React World, which they said would let other video-makers use the "react" title while having the support of the larger Fine Brothers network.
However this plan was negatively received by YouTube viewers as so many fans already make similar reaction-based videos online, using the word "react" in the title.
Judging by the fan reaction, it looks like The Fine Bros’ latest controversy is only just beginning.
Reaction videos for the Fine Brothers have proved particularly successful, who have also produced a number of regular series, including Kids React, Teens React and YouTubers React.
As well as KIDS REACT (registration number 4248447), the Fine Brothers have also registered or applied for:
86733631 DO THEY KNOW IT?
86733629 FINE BROTHERS ENTERTAINMENT
86733626 KIDS VS. FOOD
86697827 ADULTS REACT
86689835 CELEBRITIES REACT
86733622 LYRIC BREAKDOWN
86744918 PEOPLE VS. TECHNOLOGY
86733635 TRY NOT TO SMILE OR LAUGH
86689822 PARENTS REACT
4371581 ELDERS REACT
4371580 TEENS REACT
Of these, only ELDERS REACT and TEENS REACT have been granted so far. The rest are all still pending applications.
Michael Downing from Downing shares his expertise on the above trademark applications and gives his take on the overall trademark controversy;
I'd say that apart from FINE BROTHERS ENTERTAINMENT, all of the above trademark applications are non-distinctive as being ordinary phrases. The application for REACT itself (application 86689364) is probably the most egregious as it is the easiest.
“The trademark storm highlights the importance of examining for what trade mark people call "distinctiveness", which is the ability of a trade mark to distinguish the goods/services of the applicant from the goods/services of other traders. If you take a trade mark that is an invented word (say, KODAK) then it's quite straightforward as there is no real reason why anyone would ever want or need to use that – other than to refer to your goods or services. If it's a dictionary word then it's a bit harder – you have to look at the meaning of the word and see whether there is any relationship with the goods or services that the applicant wants to register it for. So (for example) NORTH POLE would be a distinctive trade mark for bananas but not for venison.
The real question is whether or not people would regard the trade mark as indicating a specific origin of goods/services, or whether they would regard it as telling them something about the nature of the goods or services. Usually this is very difficult to assess directly, because it requires looking into the mind of a consumer, but in the case of the Fine brothers' trademarks it's actually much more straightforward than usual. A YouTube viewer presented with the phrase KIDS REACT TO [whatever] would likely assume that they were being offered a video showing children's reaction to seeing [whatever], rather than think that this was a channel name. More importantly, it is the kind of phrase that could reasonably be used as a descriptive term by ordinary YouTube users to describe their videos, and is therefore not distinctive.“
Only time will tell if The Fine Bros. recover from the debacle created by their React World decision.