There is a federal lawsuit pending in California to decide whether an AI-generated Italian Brainrot meme called Tung Tung Tung Sahur belongs to its ostensible "creator" or if the character is free for anyone to use because it was made using an artificial intelligence program. This question has a lot of implications in US copyright and trademark law.
Several months ago, I was introduced to the popular fad of Italian Brainrot by Elliot Riseman, a young filmmaker working on a film about the question of the ownership and copyright and trademark protections of Tung Tung Sahur and other AI-created memes. I learned a lot from Elliot.
First, what is Italian Brainrot? These are creatures in the meme culture that were created using AI. They are fanciful cartoon creatures with fake Italian-sounding names that speak in a fake Italian gibberish. The most famous ones include Ballerina Cappucina, a ballerina with a cup of coffee for her head; Tralalero Tralala, a shark with human legs wearing running shoes with the Nike swoosh; Bombadino Crocodilo, a combination crocodile and old-style bomber plane; and others, including Tung Tung Tung Sahur, a log drum fellow who carries a bat. He was created using an AI program by Fernanda Bagas Indrastata, an Indonesian man who goes by the online name of Noxa.
Noxa teamed up with Mementum Lab, a French company, to license Tung Tung Sahur to Epic Games for use in its Fortnite game. Without working through Mementum Labs and without licensing the character, Spyder Games of Do Big Studios created a Roblox game called "Steal a Brainrot," which includes the Tung Tung Sahur character. Mementum Labs asked Spyder Games to pay to license the character. Spyder Games filed a federal lawsuit claiming that Tung Tung Sahur is an AI-generated character that lacks human authorship and thus does not have Copyright protection. Thus the company claims it is free to use Tung Tung Sahur without paying a licensing fee. Mementum Labs countersued saying Noxa provided a lot of human input into the creation of Tung Tung Tung Sahur, including its name, voice, background story, etc. There is a hearing in this case in mid-September, 2026.
This case could have significant impact since major animation producers are now using artificial intelligence to create and generate characters. What amount of human creativity needs to be involved for a character to have Copyright? That's the question.
Mementum Labs also applied for a trademark on the Tung Tung Sahur name and a depiction of the character for use in five Classes for a compendium of goods and services, including:
Goods and services
IC 009: Downloadable digital files containing images, videos, audio works, animations, digital avatars or illustrations, collected or generated multimedia content, with comments, legends or metadata; downloadable digital files containing representations of characters or avatars, including in animated form or generated by artificial intelligence; downloadable software; downloadable mobile applications; digital files containing source code; digital files containing text data used to generate content by artificial intelligence; digital files featuring content generated by artificial intelligence (text, videos, voice); downloadable digital files containing videos of games and scenes or levels of video games; downloadable software comprising interactive prototypes for games; recorded software containing smart contracts; digital collectibles in the nature of downloadable files; downloadable digital files authenticated by non-fungible tokens (NFTs)..
IC 025: Clothing; footwear; headwear; shirts; leather clothing; belts (clothing); furs (clothing); gloves (clothing); scarves; neckties; socks; slippers ("chaussons"); beach shoes; ski boots; sports shoes; underwear..
IC 028: Games; toys; toys for pets; baby gyms; video game consoles; ornaments for Christmas trees, except illumination articles and confectionery; Christmas trees of synthetic materials; apparatus for physical education; fishing tackle; balls for games; billiard tables; billiard cues; billiard balls; playing cards; table-top games; ice skates; roller skates; scooters [toys]; sailboards; surfboards; rackets; snowshoes; skis; protective padding (parts of sportswear); models [toys]; figurines [toys]; robots being toys; gaming keyboard and mouse..
IC 035: Online advertising, promotion and marketing services for third parties, including via social media platforms, online marketplaces and virtual spaces; online retail or wholesale services for physical goods or downloadable digital files, especially digital avatars, skins, digital collectibles authenticated by non-fungible tokens (NFTs); services for the creation of Internet domain names..
IC 041: Creation, production, broadcasting and use of audiovisual or narrative content around the same: animated series, videos, short formats, interactive games, podcasts, comedy sketches; organization of events, conferences or exhibitions around the same; writing, design and use of scripts, dialogs, storyboards, narrative and artistic elements in connection with characters or the universe thereof..
The Mementum Labs trademark application has been issued a Nonfinal refusal based on a prior-filed application, Serial number 99171194, by Innovatex Labs of Lewes, Delaware. Innovatex seeks a trademark on the words "Tung Tung Tung Sahur," with no depiction or image, for use on "Modeled plastic toy figurines; Plush toys; Plush dolls; Smart plush toys; Stuffed and plush toys; Soft sculpture plush toys; Novelty plush toys for parties; Novelty toy items in the nature of plastic and non plastic materials; Infant toys; Dog toys; Toy, namely, battery-powered computer game with LCD screen which features animation and sound effects; Toy figures; Stuffed toys" which it claims to be already selling at its online store, https://officialbrainrotshop.com. The Innovatex application has been issued a Nonfinal refusal based on the identification of the goods being nonspecific. The trademark examiner tells the applicant how to amend the description of the goods to make it sufficiently specific. The applicant did not respond timely to the office action and so the application is proceeding without the questioned listings and proceeds with these goods only:
International Class 28: Modeled plastic toy figurines; Plush toys; Plush dolls; Smart plush toys; Stuffed and plush toys; Soft sculpture plush toys; Novelty plush toys for parties; Infant toys; Dog toys; Toy, namely, battery-powered computer game with LCD screen which features animation and sound effects; Toy figures; Stuffed toys
In addition, two Letters of Protest were filed in the Innovatex Labs case, and the Attorney Advisor has issued memorandums to the Trademark Examiner that the Letters contain pertinent evidence regarding the pending examination, on the grounds that it is a "Widely used message (that) fails to function as a mark under Sections 1, 2, and 45." The Letters of Protest show numerous images of the words "Tung Tung Sahur" and the character in use online on a wide array of toys and memes.
It seems likely that Innovatex Labs will find that it cannot claim a widespread meme as its own trademark.
A Letter of Protest is a fast, inexpensive way for an interested party to contact the Trademark Office about its objection to a pending application before it goes to publication. Letters of Protest do not name the parties objecting. The owner of the pending application is not told who filed the Letter, but in some cases, this is a fairly logical guess. If a Letter of Protest is found to have no relevant evidentiary value, the trademark applicant will never know it was filed in their case. Letters of Protest are one of the oddities of Trademark practice.
In addition to the battle for Tung Tung Sahur, there are numerous trademark applicants trying to jump on the Italian Brainrot bandwagon, with applications from Italy, China, the Ukraine, and the US. Originality is nowhere in sight with most of these applicants.
The lack of originality of the numerous trademark applicants trying to jump on the bandwagon and claim ownership on popular memes is fairly astounding. Kudos to the Trademark Examiners and the writers of the Letters of Protest for keeping these usurpers in check.
If you'd like to discuss this case or add your two cents, please contact me via email at susanbasko@gmail.com Please note, All info sent in becomes mine to use on this blog or elsewhere.