HBO’s official Twitter account followed up soon after by asking “How do you say trademark misuse in Dothraki?” – referring to a fictional language used by one of the kingdoms or tribes which appear in the show. What seems clear is that the President used and referenced the show as inspiration for his tweet. Or put another way, when does the referencing of another brand cross the line from inspiration to infringement? As with most claims of IP infringement, the question is whether or not the president went too far. It isn’t unusual to see traders referencing common or well-known brands to gain a foothold or greater recognition in the market. That can be through use of a similar (but sufficiently distinctive) name, similar shaped packaging, wrappers or packaging with the same or similar colouring. It is no coincidence that the shelves in some supermarkets are full of products that have similar shape, colour, style or packaging to their more well-known or expensive counterparts. However, those similar products generally have features which make them sufficiently distinctive or able to be distinguished from the products they have taken inspiration from.
The test is both qualitative and quantitative. That is, where a large portion of the earlier work has been copied, or where an essential part of the work has been copied, then there is likely to be infringement.
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