Adult-Themed Site Cosplay Deviants Has Trademarked Cosplay is NOT Consent
An explosion of chatter has erupted online as people have taken notice that the cosplay-themed porn website Cosplay Deviants trademarked the phrase "Cosplay is NOT Consent." The idea that this particular site is positioning itself as the "champion" or "leading edge" of the effort to have more conventions implement and post harassment policies has taken the community by surprise.. Additionally, there have been comments online to the effect of Cosplay Deviants CEO Troy Doerner approaching conventions attempting to get royalties for using the Cosplay is not Consent trademark.
Stemming from an increase of online social media posts in mid-2012 onward regarding cosplayers being harassed and assaulted at conventions, including posts by cosplayer Meagan Marie, and Mandy. The groundswell had already begun and it led up to a viral piece by Sushi Killer (Ellie Schweizer) on 16 Bit Sirens which was published on April 3rd of 2013. Since then through community efforts by cosplayers, convention goers, and various organizations most events include harassment prohibitions and rules posted on their website and often on banners and signs around conventions.
That's been going on for a number of years, but now some folks have noticed that the phrase has been trademarked, and was officially registered exactly one year ago on November 22nd, 2016.
Given that not many people had been aware of any association between the movement and Deviants, there's been some surprise and wondering what this might mean. Earlier today on Facebook, Doerner posted an official statement on the matter:
The Trademark was filed in 2016 when I was contacted by a large convention asking to "buy" the page from me, this raised a major red flag. We however have been spearheading the movement since 2013. I purchased the domains for Cosplay is NOT Consent in January of 2013, this can be seen looking up the whois info. First example of Cosplay Deviants pushing the movement would be the flyers we paid $5,000 to insert into every bag at Anime Expo 2013. We've also hosted panels at conventions around the US and have worked directly with conventions in helping to create policies that protect their attendees.
Our Trademark is simply in place to prevent people, namely conventions from abusing the movement and potentially profiting from it.
There had been some rumors running around online that Deviants had been attempting to charge conventions for the use of the Cosplay is not Consent trademark. I spoke with Doerner earlier today and he said:
We have never asked for a cent in regards to using the Cosplay is NOT Consent trademark.
He also included what he said was the email sent to event organizers:
Dear Convention Runner,
Recently we took notice of a number of conventions that enthusiastically use and promote the Cosplay is NOT Consent movement within their show policies. We think this is outstanding and commend these events as the are supporting a safer and more comfortable environment for their attendees.
In an effort to help manage and minimize improper use of the term in regards to the overall movement, the phrase "Cosplay is NOT Consent" has been trademarked by Cosplay Deviants, LLC. To be clear: we have no intention of stopping your usage of the phrase, or your promotion of Cosplay is NOT Consent. We would, however, like to advertise your show's compliance in helping to provide a safe environment for cosplayers and attendees alike through our combined social media, newsletter and educational panels.
Please contact me via email (email@example.com) or via phone (321.385.7465) so that I can send your convention an acceptable trademark use form.
If you plan on continued use of the Cosplay is NOT Consent trademark please sign and return the attached form at your earliest convenience.
We greatly appreciate your support of the Cosplay is NOT Consent movement and look forward to working with you in helping to create a safer, more welcoming environment for attendees around the world.
Sincerely, Troy Doerner CEO Cosplay Deviants, LLC
Doerner indicated that it was not their intent in general to go after conventions legally for use of the mark (he didn't indicate what would happen if they refused to reply to their form), unless a convention was making branded products with the trademark (e.g. making t-shirts saying Cosplay is not Consent). When asked if they would pursue conventions who used the phrase, he replied:
Not at all, our aim is to prevent anyone, companies or individuals from profiting on the movement. Any merchandise we have created for the movement has been given away for free.
He indicated that their move towards filing for the trademark was due to a convention having approached him to purchase the domain, expressing that the fact that it'd been offered "raised a red flag." Whether the red flag would be that someone would own the phrase and attempt to leverage it (like they are doing), or that it meant that there was money being left on the table that they could go after a portion of proceeds, remains to be seen.
Deviant's claim to have originated the phrase would seem to be wrapped up in their ownership of the domain name cosplayisnotconsent.org. Owned by Deviants, it was originally registered on January 7th, 2013. The website doesn't appear until May 19th of the same year, so one of these things is not like the other, obviously. The trademark filing itself claims that the January 7th of 2013 was the first use of the phrase and we're still hunting to see if they get the nod for having used the phrase in context first.
The sheer ubiquity of the phrase of the movement for conventions to be safe harbors for fans and cosplayers to gather seems to run against the idea that someone is now laying claim it. But, at the moment, it does appear that Cosplay Deviants thought of using the phrase for such a purpose first with their earlier domain name registration. Other than the particulars of the owning company, does it matter much might be the larger question. If they're really not going to enforce their trademark for anyone who isn't profiting off of it, then it doesn't change the ability for events to use the phrase to support and encourage awareness.
We'll keep you updated on this story as it continues to develop, and please let us know if you know of any pre-2013 use of the phrase "cosplay is not consent."
Update: We've found a video (thanks to a pointer by Meredith Placko) titled My Cosplay is not Consent featuring an unnamed cosplayer which was uploaded back on October 19th of 2011, so that may run counter to the initial use claim by Cosplay Deviants in January of '13
Update #2: In comments from a former intellectual property paralegal experienced in trademark law – they pointed out that the filing class of the trademark is 41, which means Education and Entertainment Services. In the filing, it notes:
This would indicate that if the trademark was used on a shirt and sold, but claimed not to be educational in intent, may be a suitable defense.