Who Is Your Lawyer? » mark

Generically Yours

Robert Scott Lawrence — Sat, 05 Mar 2011 22:58:14 +0000

Do you know what genericide is? It’s when a once lofty brand name — a market leader — becomes so comfortable on the tongues of consumers that they start using it as a noun, and the mark itself loses its legal power to define the brand. The public appropriates the name for itself, and competitors start using the name as if it were a found object rather than a creation from the mind of man. Sounds a bit silly, doesn’t it? But for those of you who are not initiates into the mysteries of intellectual property law, here’s a sampling of trademarks who ruled the market in their heyday and are now no more.

Aspirin— originally a trademark of Bayer AG for a type of salicylic acid made from willow bark
Cellophane — originally a trademark of DuPont
Dry Ice — originally a trademark by Dry Ice Corporation of America
Escalator — originally a trademark of the Otis Elevator Company
Kerosene — originally trademarked by Abraham Gesner
Mimeograph — originally trademarked by Albert Dick
Thermos — originally a trademark of Thermos GmbH
Touch-Tone — originally a trademark of AT&T
Trampoline — originally trademarked by George Nisse
Videotape — originally a trademark of Ampex Corporation
Yo-Yo — originally a trademark of Duncan Yo-Yo Company
Zipper — originally a trademark of B.F. Goodrich

Are you shocked? Did you grow up using these words as common nouns, thinking that Adam had called them out by name when he named the fish and fowl and beasts of the field? Or did you — like virtually everyone else in the world — merely take them at face value and never give them a passing thought? Now that I’ve focused your attention, let me throw some other words your way, and you tell me whether they are still trademarked or have become part of the common lexicon:

Band-Aid
Bubble Wrap
Crock-Pot
Formica
Frisbee
Hula Hoop
Jacuzzi
Jeep
Ping Pong
Polaroid
Popsicle
Q-tips
Sharpie
Styrofoam
Vaseline
Velcro
Walkie-Talkie
Xerox

Can I tell you I jumped out of bed and swallowed two aspirin, zipped up my zipper and grabbed a thermos of coffee before driving off in my jeep to xerox a box of documents and fedex them to Chicago before the big hula hoop party at the escalator company? Can I relax in my jacuzzi afterwards with a big styrofoam cup of Coke without having to slap a big ® symbol on everything?

What do you think?

Hey, You Trademarked My Coffee!

Robert Scott Lawrence — Fri, 24 Dec 2010 23:24:52 +0000

So, your team of internationally renowned Swiss scientists cross-bred seven different strains of coffee and now you want to market it to the world. First, you need to give it a name. Sit down and write out ten great names on a piece of paper and then tell your lawyers to go search the trademark database to see if any of them are available.

Guess what? They’ve all been taken.

These days, if you can think of a name, then odds are it’s been trademarked by one of the other billion-plus people in commerce. If you have a name in mind that is in the dictionary and is a single syllable, then it has almost certainly been snapped up by someone looking for something catchy. But don’t fret. There’s no need to go all Häagen Dazs and inflict another umlaut-infected trademark on the world just yet. A two word mark buys you more chances of success, and a three word mark gives you even more room to shuck and jive. While you might not be able to get the PTO to grant you rights to The World’s Best Coffee (that’s been done, sorry), if your proposed trademark is in the form of snazzy descriptive term + coffee you should be in business.

Here’s a short list of exemplars of coffee marks that are out there, filling the shelves of Whole Foods and your local gourmet specialty market as we speak:

Jamaica Blue Mountain Coffee
140.6 Kona Coffee
Farmers Market French Roast
Jah Coffee
Starbucks Coffee
Amazing Coffee
Raus Coffee
Argo Coffee
Café Luna
Cafe Dulcinea
Café Hope
La Selva Café
Pure Café
Kicking Horse Coffee
Biff’s Coffee
Simply Coffee
Full Circle Coffee
Coronado Coffee
Barbershop Coffee
Rusty’s Hawaiian 100% Ka’u Coffee
New Orleans Famous French Market Premium French Roast Coffee

My personal favorite isn’t on the list, and it’s hard to find, but if you come across Uncle Bucky’s Supercalifragilistic Extra Strength Jalapeño Café, give it a try. If that doesn’t wake you up, nothing will.

In Your Face®

Robert Scott Lawrence — Thu, 09 Dec 2010 06:54:24 +0000

In 1972 an out-of-work actor named Daniel Odell (sometimes called Odum) attempted to trademark his distinctive basso voice, which some have said was a precursor to the Darth Vader-like tones of James Earl Jones. Odell’s application was rejected by the Patent & Trademark Office on the grounds that he was not yet famous enough to merit any kind of protection, and that his voice — while distinctive — did not necessarily serve to identify him and only him.

When I first heard this, I had to pause, and then I nodded in recognition as I realized that however trite it may seem it is nonetheless true that your voice is almost certainly not unique. Out there, somewhere in the vast sea of billions of souls, there is another voice just like yours, a doppelganger dulcet tone owned by a Chinese teen who hasn’t yet managed to pass from elementary English to the more advanced studies that would bring his voice to full fruition (and your possible attention), but instead prefers an archaic French that you, poor American, are unlikely to ever comprehend. He’s out there, your vocal twin, but the odds are billions to one against you ever running into him.

That the PTO would recognize this possibility as an impediment to granting a trademark seemed odd to me, however, given the office’s historical penchant for rolling over and liberally granting licenses to marks that not even an addled alderman would deem unique. Especially pique-inducing are the obvious modern day capitulations to capitalism, such as McDonald’s largely successful efforts to trademark every word that begins with a Mc, and Facebook’s already notorious quest to gain ownership rights over not only “book” but “Face” as well. Surely no reasonable soul could in good faith ever see fit to take such basic nouns out of the public lexicon, but then again the PTO is no home to the normal. Such corporate steamroller applications are so ubiquitous nowadays that we as a people are as jaded by them as we are by efforts to warn us of the continuing attempts to mine more and more of our personal data. The world we live in is so complacent now, stuffed full of pizza in front of the TV, that I feel compelled to raise the hue and cry because it should be alarming to us as a people when any company tries to assert property rights in our common heritage. Can you imagine a world in which even the look on your face can be trademarked, your tongue tied with words you can no longer freely utter? Words, my friends, are as much our legacy and treasure as is the genetic code (which Genentech is trying to patent as we speak), and should be protected with every iota of our strength. Some days it seems to me as though common sense has fled the roost along with common decency, and that the only thing we have in common as a free people is a very common desire to make a buck. No one cares if we lose face® to rapacious corporate mimes.

About the only thing we find it impossible to patent lately is the concept of making money, though I am reasonably confident that Google is trying to claim it as a business method patent. Hence their absurd interview questions (“Construe pi to the 17th decimal, please. Now build a tetrahedron using only your mind”) which are designed to convince the world that the intellegentsia who work there are innocents that only care for your welfare, and that greed and avarice live far far away in some province you’ve never heard of. Possibly in Heilongjiang with the Chinese kid who has your voice.

McDonald’s sues teen over use of “McFest”

Robert Scott Lawrence — Wed, 27 Jan 2010 07:34:53 +0000

A Chicago teenager suddenly finds herself embroiled in a trademark dispute with McDonald’s Corp. over her use of the name McFest for an annual charity concert featuring high school and college bands. Although the concert, which raises money for the Special Olympics, has been promoted under the McFest name since 2007, and the teen’s surname is McClusky, apparently the corporate giant fears that use of the McFest mark will diminish the power of its own mark. Given that McDonald’s has trademarked as many words beginning with “Mc” as the USPTO has been willing to hand out (e.g., Mc$ave, McButton, McRule, McFree and just plain Mc), it’s really not surprising, but one has to wonder where it will stop. Just out of curiosity I wrote down all the last names starting with Mc that I could think of, and was still going strong after I’d reached 50. Can McDonald’s really prevent everyone with a surname starting with Mc from opening their own McBusinesses?

Who Is Your Lawyer? » mark

Generically Yours

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