The emergence of surreal characters generated by artificial intelligence (AI) on platforms like TikTok has triggered a viral phenomenon known as Italian BrainrotThese creations (such as Tralalero Tralala, Tung Tung Tung Sahur or Ballerina Cappuccina) have conquered the market in the form of trading cards, toys, video games and merchandising, but they have also raised important legal questions about their protection.
Is it possible to register a trademark without being the creator?
In the trademark system of the European Union and Spain, the rule of first to files It grants exclusive rights to whoever files the application first with the relevant office (EUIPO or OEPM), regardless of whether they are the original creator (since the main function of trademarks is to indicate the commercial origin of the product or service). This has allowed multiple parties to attempt to register names linked to the Brainrot universe, generating a flood of applications and potential conflicts.
However, the law establishes clear limits: if it is proven that an application was submitted in bad faith (for example, to misappropriate pre-existing rights), it can be challenged. But the burden of proof always lies with the claimant.
Can authorship be protected in AI-generated creations?
Current legislation only recognizes copyright for natural persons. In the case of AI-created characters, recognition of authorship depends on the degree of human intervention and the existence of originality. If the result is the product of precise instructions and creative control by the prompterIt could be considered a protected work, provided it possesses originality and creative merit. The challenge lies in being able to demonstrate this.
Furthermore, the terms and conditions of use of AI platforms may affect the ownership of the results, which adds complexity to legal protection.
Commercial frictions and brand coexistence
The proliferation of brands selling products associated with Brainrot can lead to commercial friction, with cross-oppositions between applicants. However, simultaneous applications can also result in peaceful coexistence of trademarks when they cover different market sectors, provided, of course, that no legal action is taken against them by the legitimate trademark holders.
For example, the same name could coexist if it is used for different products (such as toys versus clothing) and does not cause consumer confusion. This possibility, although less frequent, is legally viable and can be a strategic approach for companies wishing to capitalize on the phenomenon without directly conflicting with other registered trademark holders. However, this does not preclude the legitimate holder, upon proof, from challenging the registration or filing infringement claims.
How to protect yourself against unauthorized copying and use?
The proliferation of products inspired by Brainrot has generated commercial friction and a risk of plagiarism. To avoid this, it is essential to have an adequate protection strategy: trademark and design registration, active market monitoring, and the use of technological tools to detect copies.
Platforms like Amazon, eBay, and Google allow for the removal of illegal products within 24-48 hours if ownership of the rights is proven. However, for this protection to be effective, there must be both a valid or current right and a registered owner of that right.
Are we looking at a popular creation?
The difficulty in identifying legitimate authors has led some experts to compare the phenomenon to popular creations transmitted orally. If no one claims authorship of characters like Tralalero Tralala, or of the content that develops them (videos, memes, songs), copyright protection becomes freely available, subject to claims by anyone who believes their legitimate rights have been infringed.
What if the Brainrot phenomenon fades away?
The regulations stipulate that trademarks not used effectively for five years will expire. However, this period is considered a reasonable timeframe for the trademark holder to begin commercially exploiting the brand. In viral phenomena like Brainrot, this "grace period" can be crucial for establishing a monetization strategy.
The viral nature of AI-generated creations presents new challenges for trademark and intellectual property law. In this context, expert advice is key to avoiding conflicts, protecting intangible assets, and leveraging the opportunities offered by the digital environment. At Elzaburu, we support companies, creators, and rights holders in designing effective legal strategies to register, defend, and exploit their trademarks in an increasingly complex and digital ecosystem.
Henry James, lawyer in the area of brands from Elzaburu.
