Update: MTV News spoke to artist Fernando Sosa after this story originally posted, see what he had to say below.
Remember Left Shark? You know, the stumbling, bumbling sea monster who nearly stole Katy Perry's Superbowl half-time show with his botched choreography? Then you might remember that Katy sent a cease and desist letter to sculptor Fernando Sosa after he started selling 3-D Left Shark figures.
And how she then tried to register a trademark on Left Shark (as well as "Right Shark," "Drunk Shark," and "Basking Shark")? Well, according to The Hollywood Reporter, the U.S. Trademark Office has rejected her initial attempt to register "Left Shark," which became a huge meme after the performance (and the subject of a non-legal copycat claim by this indie rock band.)
Trademark examiner David Collier said the application, "identifies only a particular character; it does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services," according to the Reporter. Basically, Perry's team didn't provide enough evidence that every time consumers see "Left Shark," they think of Katy's performance.
Plus, the photos that were submitted of Perry dancing with the shark and the drawings her team sent in of the original design didn't really match up.
"Specifically, the [photograph] displays the mark as a stylized depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail," Collier said. "The shark has five gills, a full mouth with teeth and round eyes with eyelids; however, the drawing displays the mark as a stylized depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the shark's mouth appears without teeth; the shark also has oval eyes without eyelids."
Katy can try again with more specific details now about what kind of goods she's trying to protect, but when MTV News spoke to Sosa on Wednesday (Apr. 22), he said he had a good feeling this is how things would turn out. "Did you see that image they submitted? They didn't even look like sharks, so I'm not surprised it wasn't approved," Sosa said. "When they sent that cease and desist instead of hiring an artist to sketch out Left Shark for the trademark application they grabbed my image and used it and as soon as they found out I had a lawyer they dropped it. Maybe they had a secretary sketch Left Shark."
Sosa said he offered to work out a deal with Perry's camp and pay them royalties on his sales. "They could have just hired me!" he said, noting that his shark images are copyright protected. A spokesperson for Perry could not be reached by MTV News for comment at press time.
Sosa has moved on to Hillary Clinton figurines in the meantime, clearly not letting the legal maneuverings slow him down. He also recently posted a whole gang of new Left Shark merchandise, including boozy St. Patrick's day t-shirts, mugs, hoodies, sitckers, iPhone and iPad cases as well as mugs and throw pillows.
And Katy is clearly not all that mad at some of the bootleg gear.