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Who really owns WallStreetBets? The man who created the subreddit, or the platform that hosted it?
In this episode of The Briefing, Scott Hervey and Tara Sattler dive into the trademark showdown between Jaime Rogozinski and Reddit, and why both the District Court and the Ninth Circuit said no to Rogozinski’s claim of trademark ownership.
This case is a cautionary tale for creators and entrepreneurs about what really counts as “use in commerce” under trademark law. Just coining a catchy name or launching a community isn’t enough. If you’re not the one offering goods or services under the brand, you don’t own the trademark. Watch this episode here. Show Notes:
Scott: He created the subreddit. He coined the name. He even filed a trademark application for it. But when Jamie Rogosinski took reddit to court to enforce his claim over the Mark Wall Street bets, both the district Court and the Ninth Circuit told him the same thing. Just because you created the name doesn’t mean you own the trademark. I’m Scott Hervey, a partner with the Law firm of Weintraub Tobin, and I’m joined today by my colleague, Tara Sattler. We are going to talk about Trademark use, ownership, and the Reddit battle over Wall Street bets on this installment of The Briefing. Tara, welcome back to The Briefing. Thanks for being here today.
Tara: Thanks for having me. Always glad to be chatting with you, Scott.
Scott: So this one’s a real interesting I think almost everybody knows about the subreddit Wall Street Bets. Can you give us some background on this whole dispute?
Tara: Yes, absolutely. So the story starts with Jamie Rogosinsky, and I really hope I’m pronouncing that right. So my apologies if I’m not. But Jamie Rogosinsky, the man widely credited with launching the subreddit feed Wall Street Bets back in 2012. And What began as a niche community for high-risk trading chatter exploded into really a cultural phenomenon in 2021 during the Gamestop and AMC Short Squeez. Right.
Scott: Sensing an opportunity to commercialize the brand. Rogusinski filed a trademark application for Wall Street Bets in 2020, covering merchandise and other goods. But Reddit, which owned and hosted the subreddit platform, wasn’t on board with that. It removed Rogusinski as a moderator for violating its policies and later filed its own trademark application for the same name, this time for an online forum service.
Tara: So Rogusinski sued Reddit in early 2023 in the Northern District of California and asserted claims for trademark infringement, unfair competition, and declaratory relief, arguing that he, not Reddit, owned the Wall Street Beats brand.
Scott: Let’s talk about who actually used the mark. So to understand why both the District Court and the Ninth Circuit rejected Jamie Rogosinski’s trademark claim over Wall Street bets, we have to look closely at what each party actually did with the trademark, and more importantly, how the law defines, quote, use in commerce.
Tara: Right. So Rowe Kuzinski argued that he was the originator of the mark. He created the subreddit, Wall Street Bets in 2012, moderated it for eight years, and even shaped the visual identity of the community itself. So according to him, he wasn’t just a user, he was the brand in the brand space.
Scott: And to bolster that claim, he pointed to several activities movies. First, he published a book in January 2020 that he called Wall Street Bets: How Boomers Made the World’s Biggest Casino for Millennials. He linked it to the subreddit, and he Wall Street Betts’ name directly in the title.
Tara: He also announced plans to launch Wall Street Betts’ branded merchandise and even promoted a real money esports trading competition, all under that Wall Street Bets’ name. He highlighted his growing media presence and public persona, and he claimed the public really associated him with the mark and not read it.
Scott: But here’s the legal problem. None of Isn’t that moderating a subreddit feed, writing a book, announcing merch ideas, remember, announcing merch ideas, becoming recognizable, counted as trademark use in commerce under the Lanham Act?
Tara: Exactly. Courts require that to establish trademark rights, you must be the first in commerce to use the mark in connection with actual goods and services, and that the use needs to be real, public-facing, and commercial, not just conceptual or community-based.
Scott: Now, Reddit, on the other hand, didn’t just host the subreddit. It actively operated it. They controlled the platform. They served millions of users and provided forum services under the Wall Street Bet’s name, beginning in 2012. That qualified as commercial use of the mark.
Tara: And both the District Court and the Ninth Circuit agreed. Reddit’s provision of online forum services under the Wall Street Betts name constituted a bona fide use in commerce. Owners, long before Rogosinsky’s book or other merch plans ever hit the market.
Scott: Both courts looked at Rogosinsky’s actions and said, You didn’t use the mark as a source identifier for any goods or services, at least not in the way trademark law requires. In fact, the very platform you were using, Reddit, was the one actually offering services under that name.
Tara: So, let’s take a look at the District Court’s decision. Judge Maxine Chesney dismissed Rogosinsky’s trademark claims under Rule 12(b)(6), holding that he failed to allege sufficient use in commerce to establish trademark rights. And that’s the key here, the use in commerce.
Scott: Exactly. Under US Trademark Law, specifically the Lanham Act, a trademark is owned by the party who first uses that mark in commerce in connection with specific goods or services. Just being the first to create a name or idea about a name doesn’t automatically for ownership rights. You need to use the mark in a way that identifies you as the source of the goods or the services in the marketplace.
Tara: And Judge Chesney noted that according to Rogosinsky’s own complaint, it was Reddit that created and provided the services associated with the Wall Street Betts Mark, the online discussion forum, not Rogosinsky. He may have moderated and participated, but Reddit was the one offering the forum and the services of the forum to the public.
Scott: And further, the court emphasized that Rogosinsky never alleged that he personally provided any goods or services under the Wall Street Betts Mark before Reddit’s use. And later Other attempts, like writing a book or selling merchandise occurred well after Reddit’s platform was already operating under that name.
Tara: So then Rogusinski appealed, but the Ninth Circuit, in a memorandum opinion, issued in June of affirmed the district Court’s dismissal, and they doubled down on the importance of the trademark use in commerce.
Scott: Right. The Ninth Circuit Panel agreed that Rogosinsky didn’t plausibly allege priority of use. The court said that even though he created the subreddit and coined the name, that didn’t qualify as use in commerce under trademark law.
Tara: The Ninth Circuit found that it was Reddit, not Rogosinsky, that had used the Wall Street Bet Smart in commerce by providing the forum services under that name. And that was really enough to establish Reddit’s priority.
Scott: Right. And it’s a clear message. Creation of a name or even administering an online community doesn’t count as using commerce unless you’re the one providing the commercial goods or services under the mark.
Tara: Let’s talk about what use in commerce actually means. The USPTO defines it pretty clearly in the Trademark manual of examining procedures. Or the TMEP. For goods, the mark must appear on the product or packaging, and the product must be sold or transported in commerce. Then for services, the mark must be used in advertising or the performance of those services, and the services must be rendered in commerce.
Scott: Right. And the use must be bona fida use, not just token use or internal use. For example, launching a website that shows the mark and offers services to the public can count. But being a moderator on someone else’s platform or coining a term that others use, that does not count.
Tara: In Rogosinsky’s case, even if he was synonymous with Wall Street bets in the early days, He didn’t control the platform or offer the forum services. It was Reddit that did that. And that distinction is what killed his trademark claim.
Scott: So let’s talk about what brand creators can take away from this case. So There’s a couple of things. First, you have to use it or you’re going to lose it. You must use the mark in commerce to acquire trademark rights. Just creating or coining a term isn’t enough. You need control. The services or the goods must come from you, not somebody else. Hosting or moderating a platform that belongs to another entity won’t establish ownership. Lastly, filing. Filing a trademark registration application is ownership. You can file a trademark application based on an intent to use, but that doesn’t confer rights until you actually use the mark in commerce and prove that use by filing a proper specimen with the USPTO.
Tara: That’s a great point. Intent to use application can be a really smart way to stake an early claim in a trademark. But if you can’t follow through with that bona fide use in commerce within that a lot of time period, then the application would just go abandoned.
Scott: Another lesson, if you’re building a brand on someone else’s platform, whether it’s Reddit, YouTube, or Instagram, you may not own the brand, even if the audience sees it as yours. You need to carefully consider where and how you’re building a brand.
Tara: That really is a key point for creators and community builders. You might have started something, but if you build it on someone else’s infrastructure or in someone else’s platform, and you don’t control the commercial use, then you don’t own the trademark.
Scott: It’s not enough to be first, and it’s not enough to be well known. You have to be the first to use the mark in commerce in connection with goods or services, meaning that you need to sell the goods or render services under that brand in the marketplace.
Tara: So while Rogosinsky may have been the creative mind behind Wall Street Bets, Reddit’s continuous operation of the forum that name gave them the edge. And the court said it, Reddit owns the mark.
Scott: That’s a tough result for Roguzinski, but a strong reminder of the fundamentals of trademark law. If you’re not the one commercially using the mark, you don’t own it no matter how great your idea is.
Tara: Yeah, that’s right, Scott. So at the end of the day, Rogusinski may have started Wall Street bets, but Reddit used it in commerce. And That’s really what Trademark Law is all about.
Scott: Whether you’re launching a startup, building a creator brand, or founding an online community, remember, trademark rights come from commercial use, not just the creative spark. Well, that’s all for this episode of The Briefing. Thanks to Tara for joining me. Thank you, the listener, for listening to this episode. We hope that you enjoyed it. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we today, please leave us a comment.