August 28, 2003
I'm Trademarking Trademark

That's right. Trademark is mine. Everyone who uses it has to stop now. If Paul Newman can do it with HUD (htm), and Bill O'Reilly and Fox claim "fair and balanced," Entrepreneur (htm) is owned by Entrepreneur Media, Al Frankin might even take "Shrill and unstable" or "deranged", to be added to the oldie but goodie Trademarks: "Common Sense" [The Kellogg Company], "Kansas" [Kansas, the band], "Time to Read" [Time, Inc.], "Wish You Were Here" [Hyatt Hotels], "Desert" [Clarks Shoes], then what's the big deal with taking Trademark? If Trademark suits are the lawsuit du jour, maybe we should consider a prior art museum for words similar to the Serendipity Files for patents.

I mean, Common Sense? Is taken? Where is the common sense when words like Common Sense are trademarked for cereal? Like nobody used those words before, in reference to anything, or to cereal or any other product? Or for that matter, in reference to actual common sense?

The Definition of a TRADEMARK OR MARK: A word, a name, a symbol, a device, or a combination of them that indicates the source of goods or services. Distinguishes the products or services of one business from those of others in the same field. The owner/assignee/licensee of a trademark/mark has the right to exclude others from using that trademark/mark by being the first to use it in the marketplace. Rights in a trademark/mark are obtained only through commercial use of the mark. The owner of a trademark/mark has the right to exclude others unless the trademark/mark has been abandoned.

So trademarks are not supposed to be generic, but are supposed to be associated with and distinguish the trademarked product from others in the field.

Course Bill O'Reilly 'splains it like this: The main point here is that trying to hurt a business or a person because you disagree with what they say is simply unacceptable in America. And that message has been sent by FOX. There's a principle in play. Vigorous debate is embraced by us, but smear campaigns will be confronted. It is simply a joke for The New York Times to editorialize that fabricated personal attacks are acceptable under the banner of satire.

What do hurt feelings and the rest of his logic have to do with whether it's realistic or makes any sense to trademark "fair and balanced" in our current IP system? Or to sue because you are satirized by a known political humorist for associating yourself with your trademarked slogan, which is not really distinguishing you from other products in the field (there are several other news organizations which use generic, ironic slogans, too)?

The hurt continues for Bill, with a new one act play, Fair and Balanced: "Fair" and "Balanced" are characters -- they are prisoners held in an underground dungeon, and every night at 8 p.m. a foul character named "Bill O'Reilly" comes down into the dungeon to torture them.

[Salon columnist] Joe Conason e-mailed... (Frankin) ... and said -- 'I have a new trademark for Fox: Fox News Channel. Wholly without merit.'.

Okay, I won't trademark Trademark, if everyone else puts down their IP guns too.

Update 9/3/03: The Onion on trademark law: The Onion | Tanzania Loses Name To Tanning-Salon Chain. And Al Franken on Terry Gross.

Posted by Mary Hodder at August 28, 2003 08:32 AM | TrackBack

I've also noticed Creative Commons license springing up all over the blogosphere...even at my site...I wonder though whether it's just trendy or are folks really serious about copyright infringement. And what exactly is copyrightable?

Posted by: Alex on August 28, 2003 03:53 PM

great stuff, Mary... it is starting to get ridiculous.

Posted by: joe on August 28, 2003 10:01 PM

Hi, Mary:

Don't forget "freedom of speech"

Have a good labor day weekend!


Posted by: Frank Field on August 29, 2003 06:32 AM

Oops! TARR URLs seem to expire - see this one instead for the trademarking of freedom of speech

Posted by: Frank Field on August 29, 2003 12:39 PM
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