Can You Trademark a Meme? What Creators and Brands Should Know in 2026

Not that long ago, memes were nothing more than niche jokes. Quick and easy references that lived and died within specific online communities. Because of their temporal nature, they weren't treated as intellectual property, and certainly not as brand assets. But, as digital culture evolved, so did many industries that realized they could capitalize on it. Today, you'll find that entire product lines, fashion labels, and media companies can be built on viral moments.

Though a single phrase or TikTok sound can generate millions for businesses, trademark offices around the world haven’t yet decided whether they have a place on the register. Noticeably, in recent years, the EUIPO has taken a much stricter stance against meme-based trademarks. In effect, applications tied to internet slang, viral phrases, TikTok audio trends, or fan-made jokes are being refused at higher rates than before. This is because the EUIPO believes that viral internet phrases do not reliably point to a single source of goods, and therefore cannot function as trademarks.

However, on the other side of the Atlantic, the story looks a bit different. The USPTO has been far more lenient when it comes to meme-based applications, if and only if the applicant can show consistent and recognizable commercial use. So, not every meme trademark gets approved, of course, but compared to the EUIPO, far more applications are making it through.

In short, the EUIPO and USPTO see internet culture in a fundamentally different way: Where the EUIPO sees memes as universal expressions belonging to the public, the USPTO sees them as potential brands if the marketplace treats them as such. In other words, Europe is often focused on the nature of the meme itself and its distribution. The U.S. focuses on how the consumer perceives it and interacts with it.

That said, this certainly doesn't mean anyone can run out and trademark their favorite meme. Both the EUIPO and USPTO will still require the same evidence—evidence of the meme actually functioning as a commercial source identifier.

This is what many creators and emerging brands misunderstand. They believe that simply featuring a popular meme on their merch or being the early bird who first commercializes it qualifies them for protection. Trademark examiners aren't concerned with the designs of your hoodies. They're looking at how consumers understand the meme and interact with it in the marketplace.

So, before you file anything, here are a few questions that you should answer:

A phrase in giant block letters or an image printed across the front of a t-shirt, unfortunately, doesn't function as a trademark. It's a design element and would be viewed as ornamental.. Not as the source identifier.

Both trademark offices are quick to point this out. Specifically in the U.S., applications tend to fail because the specimen of use does not show the mark being used as a brand identifier.

To qualify as a trademark, the phrase must appear in places consumers expect to find branding. These include neck labels, woven labels, tags, packaging, and even product pages or websites. All of these placements signal origin, not aesthetics.

This is where applicants either succeed or fail. A meme can only be trademarked when it becomes a true commercial indicator. That means customers will associate the phrase with your products or services, and not just with a brief moment in internet culture.

To successfully register their marks, most U.S. meme brands adopt the phrase as their primary brand identity and use it consistently across marketing, training customers to recognize it as a source identifier. So, if your audience sees the meme as your brand, and not just a joke, you have a fighting chance.

That said, if the phrase still remains widely used as a generic expression, or if the public doesn't attribute it to you, both the EUIPO and USPTO will view the application as lacking distinctiveness or as having been filed in bad faith.

Many creators and new brands falsely believe that the more popular their meme gets, the easier it will be to trademark and protect it. However, a meme can be globally recognizable and still be difficult to trademark. This is because popularity does not equal distinctiveness, and virality does not equal actual branding and commercial use.

Trademark rights typically arise from use, not from internet fame.

Last, but certainly not least, even if a meme meets the other trademark criteria, copyright ownership can complicate matters even further. That is to say, if the meme's imagery, graphics, or original elements were created by someone else, you cannot automatically claim exclusive rights to use it commercially. The USPTO states that the widespread use of a term or phrase may be enough to render it incapable of functioning as a trademark.If the mark includes copyrighted material you do not own, trademark offices may reject your application. And even if the offices see no bar to registration, the copyright owner may take legal action for copyright infringement. So, in practice, you need to make sure that you either created the meme yourself or you have a clear license or permission from the copyright owner to use it commercially as a source identifier. Without addressing the copyright issue, your application could be challenged, and even a registered mark might face legal disputes, which could derail your branding efforts entirely.

As culture and commerce continue to blend on the internet, meme-based brands are only becoming more common. However, trademark laws are clear. Evidence of real source identifying use, branding, and consumer recognition is essential.

So, our best advice is: if you're building a business around a meme, treat it like a brand from day one. Place it where trademarks belong, use it consistently, and give consumers a clear reason to associate it with your business. Otherwise, no matter how viral the phrase becomes, you won't be able to protect it in the U.S., Europe, or elsewhere.

Not necessarily. Being early doesn’t automatically make you the owner of a meme trademark. Trademark examiners look for source identification. Before you file, make sure you’re not just using the meme decoratively and, more importantly, make sure you have the right to use it commercially in the first place. Attempting to trademark a third party’s copyrighted material could cause unwanted legal problems. 

No, it often makes it less protectable. The more widely a meme is used online, the more likely examiners are to view it as a common expression rather than a distinctive mark. In fact, viral memes often become too generic or too widely used to function as indicators of a single commercial source.

Yes, but only when they’re used like real trademarks. This means you must adopt the phrase as part of your brand identity, use it consistently across marketing and product labeling, and create consumer recognition over time. Several meme-based marks have successfully registered in the U.S. for exactly this reason. But without evidence of genuine trademark use, neither the USPTO nor EUIPO will approve it.