One of the biggest highlights of the 2017 NCAA Men’s Basketball Tournament has been Capital One’s advertising campaign that brings back NBA-legend Charles Barkley, ubiquitously cast actor Samuel L. Jackson, and award-winning film writer/director Spike Lee travelling and watching college hoops games.
Of the handful of ad spots, “Snack Hoodie” has been fairly popular. In the commercial, Sir Charles, ever the comedic foil, wears his hooded sweatshirt backwards and dumps potato chips in the front-facing hood. While Spike steals a chip and disputes his sanity, Sam declares, "I think we need to call the Patent Office."
While many viewers are potentially contemplating calling a patent attorney for themselves, Spike quips, "[We'll] split it three ways."
However, that is not how patents work. For three key reasons (and a dozen more) Charles and Co. are likely not entitled to a patent for the "Snack Hoodie."
1. Charles must be the inventor in order to receive a patent.
Contrary to popular belief, inventorship is still not merely a race to the Patent Office. Nothing against Mr. Barkley’s intelligence, but he likely got the idea from someone else (who probably adopted the idea from someone else).
2. The "snack hoodie" is likely obvious in light of prior art.
A quick search of patents for "food pouch" "snack holder" and "snack bib" reveal quite a few concepts that are similar. Moreover, photos of people using their front-facing hoodie for snacks have appeared online long before a year prior to Charles’s performance.
3. They can’t "split it three ways"
Assuming that Charles is the actual inventor, Spike and Samuel cannot merely call "dibs" to be inventors as well. The three could create a corporation or LLC and split the company, but Charles would have to assign the patent to the holding company. That company could produce their own (snack) hoodies, but maintaining exclusivity might entail suing everyone in the U.S. who wears their sweatshirts backwards to store food–i.e., impossible!
So while the ad is entertaining as a whole, the patent-office-joke thrown in by Samuel L. Jackson really only works to further confuse (a) potential inventors who fear the Patent Office will let someone easily steal their idea and get a patent or (b) idea thieves who will actually run to a patent attorney without doing any research.
Of course, the three of them are too funny and get a pass this time!
The other commercials featuring the gang also rely on some IP when Charles uses Gloria Gaynor’s "I Will Survive" as a ringtone and when Samuel is tricked into parodying his "Snakes on a Plane" catchphrase.
Lastly, one other tidbit on trademarks that everyone notices this time of year is that only a few select networks and sponsors are permitted to use the term "March Madness" commercially and there are some who are politely asked to stop. Of course, March Madness is protected by trademark. Similarly, this time of year, on CBS we hear the trademark "A Tradition Unlike Any Other" in preparation for the Masters next month.