Trademarks: Stealing our language

[eplovejoy]

At least two separate commercial concerns are trying to trademark the phrase "Let's roll." Those words were broadcast widely after they were uttered by one of the passengers on the plane that crashed in Pennsylvania after it was hijacked on Sept. 11, but that was not the first time those words were spoken.

Efforts also have been made to trademark such common phrases as "Princess Diana" and "Summer of Love."

These are efforts to steal from the rest of us parts of our language and those making these attempts have no justification for doing so. Right?

[mrisch[$]]

I won't talk about justification, but I will say it is not necessarily stealing from use by others. Trademarks are heavily based on use for a product or service. Thus, to the extent that prior and continued use can be shown to exist, then a trademark is not valid (for example, no Burger Kings within a certain 100 square mile area in Illinois, due to a preexisting Burger King there).

So, for example, the term "Let's Roll" to describe anti-terrorist services was used on Sept 11. Because the first user is no longer around, it is up for grabs to describe that use. (truth is, it was not a trademark then either, as it was not a "brand" of the activity).

The current "Let's Roll" is to describe a fund raising charity, t-shirts, etc. Guess what - that's fair game, with a catch. It is only for the first person to use it that way in a geographic area (though that is usually US or more with the internet) and only for the ways they actually use it (or file what is called an "intent to use".

That's a long way of saying, you can still say "Let's Roll", write about it, and even use it to describe a car washing service - you just can't call your charity "Let's Roll".

[brian_igo]

There was something in the paper about this last week. The family of the man on United Flight 93 who said "Let's Roll" (Todd Beemer?) attempted to trademark the expression when they saw the public reaction after the story broke. Their effort, they say, was to prevent commercial exploitation. Unfortunately, they were beat to the Library of Congress by someone who did want to cash in. Both sides will be appearing on Court TV soon.

Prior to this, the most notorious example of a questionable trademark was former LA Laker coach Pat Riley's quiet registration of "Threepeat" after his showtime Lakers won a second consecutive NBA title in 1988. Riley produced his trademark papers five years later when the Bulls were playing my Suns for their shot at three in a row. I don't know if he ever collected royalties on the Bulls merchandise, but it is commonly accepted that God punished Riley by keeping him in Miami with the (not so hot) Heat.

Trademarking of "Let's Roll" or "Princess Diana" (BTW Counselor: Can you legally trademark someone's title and name, or are there protections against poaching as there are for internet domains?) is tasteless, but the effect is usually shortlived because the parasites are trying to cash in on a phenomenon.

I am more concerned with the loopholes that have been exploited in copyright law. Someone correct me on the fine points of the law (or the big points if I'm way off) but now that corporations and trusts own the rights to creative works instead of artists, the process of returning art, music and literature to the public domain is gone. John Lennon has been dead for longer than twenty years (the old standard) but his song catalog is still private property and will be probably forever. Same for the creations of Walt Disney, the image of every dead Hollywood star you can think of, and a growing number of literary catalogues.

The next tear I shed for an ad agency that has to pay Marilyn Monroe's family for her appearance in a 1999 Chanel ad will be the first. That is not the problem. The problem is to look at our world now and imagine how it would be without the precedent of public domain. How much poorer would our culture be if the descendants of Vincent VanGogh, William Shakespeare and Wolfgang Mozart had absolute control over the works of their long-dead descendant and demanded royalties for the reproduction. distribution or performance? If perpetual copyright protection expands to everything, and if there is a buck to be made it probably will, we will lose a large part of our cultural heritage.

Or it is something to think about at three am when sleep won't come...


Brian

[mrisch[$]]

Well I'll address the issues in reverse order. First, copyright is life of the author plus 50 years. SO, copyright lasts a long long time in any event. Whether that's too long is a whole other story.

Yes, you can trademark a name and no it doesn't have to be your own. If the name is famous there are other issues related to false attribution, but the law is replete with case law about the use of names of the dead (states differ - some allow elvis impersonators and some don't), and there are many cases of names that have value, but then get sold off, so the named person can't even use their name in a new business.

As far as the family trademarking the phrase? Never going to happen. First, trademarks are good even without a filing. Second, the phrase has to be tied to a good or service. SO if the family had a bona fide intent to use Let's Roll with every good, service, and charity, then so be it, but otherwise I could open a Cinammon Bun shop called "Let's Roll" tomorrow without going to the Patent and Trademark Office (not Library of Congress) and block at least locals from using it.

[emeleel]

Hardee's somehow managed to trademark the phrase, "Made from scratch".

[Joubert[$]]

This whole IP thing went wacky around the time that everyone and their brother tried to cash in on domain registrations. Prior to that, the most excitement I used to see were ads published in writers' pubs from brands afraid of becoming genericized. I remember Kleenex and Xerox were both rightfully adamant about the use of their names.

FedEx went so far as to change the name of the company for good marketing reasons, but also to protect the name from becoming a verb. Even now, in companies that are 100% UPS including air, people invariably say, "Fedex that to them." Overnight doesn't have quite the same ring.

I was thinking of the Riley thing as I read the post. I thought his actions were absolutely gauche, and I lost a lot of respect for him with that move.

Meanwhile, I'm going to Michael's new store for a Cinabon.

[mrisch[$]]

Originally posted by joubert
Meanwhile, I'm going to Michael's new store for a Cinabon.

Maybe you can help by Xeroxing my ads.

Someone registered for drums. (get it) :rimshot:

Here's an interesting article on the subject.
http://slate.msn.com/?id=2062607