PARSING TRADEMARK LAW, THE WRITTEN WORD, AND WOE TO THOSE DIMINISHING RETURNS

Here is a disturbing email I received this morning. At first, I was stunned at the flagrant silliness of it all, but soon, the more serious soldier in me took hold, and I knew I had to earn my right to any two words I had begged, borrowed, stolen, or simply hustled into existence by the simple magnitude of "fair use" communication. But first, the email in question:

Dear Ms. Thy:

I just ran across an article you wrote on Idiotsheet entitled Most Important Art of the New Century, posted March 1, 2008, here, and I would like to raise an issue that is of concern to Selling Power magazine, which is the use of our trademark.

The word "Selling Power" is sometimes erroneously used as a synonym for sales effectiveness. For example, your article states: “Rose, the Danish culture editor, saw the cartoons’ selling power." We do not condone such uses of our trademark.

As a practical matter, when you describe sales effectiveness, there are a wide range of terms available such as: sales excellence, sales savvy, sales mastery, sales acumen, sales efficiency, and many more.

The reason for this letter is to educate writers like yourself that we want to protect our trademark, since we don't want to risk Selling Power being declared by the courts a generic word. Therefore we ask you not to use Selling Power as a phrase since it is our legal trademark.

We would like to receive a written acknowledgement of this letter stating that you will in the future identify Selling Power as a trademark if you should write about our magazine, and not use Selling Power as a phrase. If we do not hear from you, we will need to take further action.

Thank you for your understanding and cooperation.

All the best,

Gerhard Gschwandtner
Founder and Publisher
Selling Power
1140 International Parkway
Fredericksburg VA 22406
Office: 540-752-7000 Cell: 540-273-2555

P.S. Watch Selling Power videos online www.sellingpower.com/video

Well, that was fun. So I started thinking about how to deal with this matter. I hadn't even penned the article, but here I was, a big man of little consequence, having to maneuver past a corporate threat to take further action against me. Here's the result:

Dear Mr. Gerhard Gschwandtner,

Thank you for your interesting letter, but you MUST be joking! I hardly think your "corporate trademarking powers" lend themselves to completely co-opting a rather common linguistic phrase (however tortured the phrase may appear to esteemed English professors everywhere), claiming sole ownership of the commonwealth of jargon, and thus effectively removing said phrase from the lexicon of ordinary speech, with the sole exception being to reference your magazine.

And to make matters more difficult to curtail, this same article has been posted hundreds of times across the Internet, including USA Today, The Wall Street Journal, Jihad Watch, and other prominent sites. Are they getting similar notifications from you? Probably so, but I am rather certain that they feel your claims are as unjustified as I do. I believe the article originated with the Wall Street Journal.

Granted, I am not a trademark attorney, but I do believe common sense should easily rule out your own contentions, and leave the free association of words within language to common users, not to the speculators. While the courts do seem to rule in favor of trademark holders when a competing commercial firm tries to ease in on a valued branding, that precise scenario is not the case here.

Think about it. Life Magazine's trademark status did not restrict the usage of the word life. People Magazine's trademark status did not limit usage of the word people. Time Magazine's trademark status did not forbid usage of the word time. And I hate to think how the Rolling Stones rock band and Rolling Stone Magazine finessed that sticky issue of trademarking. And while Apple Records and Apple Computer struggled for years with trademark issues, the word apple was not stripped from the tongues, pens, and crayons of men, women, and children everywhere. And what of Soldier of Fortune? Ditto for Consumer Reports, Family Business, SmartMoney, Good Housekeeping, Fair Play, Best Buy, and in these tough financial times, what ABOUT the Financial Times? And scratching further, we find the phrase "what's it like living in the USA today" would be verboten in your logic stream.

Are people now being harassed for infringement of generic trademarks and slogans ripped whole and presented to the public from the common language, even without modification or branding reference, frequently found in fast food chain ad campaigns, trademarked phrases all?

An example of one type of trademark limitation I have uncovered with a little research is that although Maytag owns the trademark "Whisper Quiet", makers of other products may describe their goods as being "whisper quiet" so long as these competitors are not using the phrase as a trademark.

Items: You deserve a break today. Catch the wave. Have it your way. Where's the beef? Drivers wanted.

Simply put, the phrases "selling power" and "buying power" are common phrases, and cannot simply be plucked off the tree for the sole benefit of corporations with an urge to monopolize lingusitic pursuits. I might be wrong, but I express doubts that the phrase "selling power" originated in the minds of your own public relations staff, and has arrived upon the contemporary scene as a result of your magazine.

But of course, your entire case rests on this single point, does it not?

Please don't misunderstand me, but ever since humanity has had to put up with politicians we've had to put up with people selling power. I heard just the other day that a thermal company in Ohio earns 20% of its annual revenue "selling power" to the city in which I live, Washington, DC.

To address your possible rebuttal stance, here's a few pertinent passages from what I dug up on the Internet:

b. Titles. Titles, while not protected under copyright law, are sometimes protected under trademark and unfair competition laws. However, one-shot titles, no matter how clever they are, are not automatically entitled to trademark protection. To be protected, titles must achieve "secondary meaning." Secondary meaning is akin to the commercial magnetism of a title. As a rule, to be protected, titles must be "broadly known." Series titles, unlike one-shot titles, make good trademarks candidates. In addition, a title in one medium, will be protected in another.

Trademark Dilution (alluded to in your email)

Trademark dilution refers to the whittling away of a famous trademark's distinctiveness through unauthorized use. Under federal trademark dilution law, the owner of a "famous" mark is entitled to stop another person's commercial use of its mark that dilutes, blurs or tarnishes its "distinctive quality." Unlike traditional trademark infringement, neither likelihood of confusion, nor competition between the parties' goods is required.

What the federal trademark dilution statute does (15 U.S.C. 1125(c)) is make parody and satire, especially in advertisements and commercials, a high risk endeavor. For example, where there's a negative or unwholesome connotation about a "famous" mark, courts are likely to enjoin use.

TIP: Trademark dilution only applies to strong marks. Dilution can occur when a well- recognized mark is parodied in an advertisement, even if there is no likelihood of confusion.

At the top of the list are arbitrary or fanciful terms, which have no pre-existing association with the underlying product (e.g., CAMPY, 7-UP, XEROX, KODAK). As you move up on the trademark ladder, trademark owners receive additional trademark protection. For example, the mark McDonald, which has no association with fast food restaurants (other than that which they created through brilliant marketing), receives extremely broad protection. Indeed, they have prevented all sorts of "McFreeloaders" -many of whom do not even compete in the food service industries. In addition, fanciful marks are presumed to be valid trademarks.

Yes, I recall the Xerox complaint. From the 1970s-80s, if mem'ry serves. Seems the population, myself included, used the tradename ubiquitously as a verb meaning to photocopy, and after years of aggressive PR, the company finally seems to have won the day in stopping the practice. But what is Xerox up to these days? Not so ubiquitous. Definitely not a household word anymore. I suppose that is a "good thing" to certain types of trademark lawyers.

I still catch myself using the offending term on occasion in a slip of the tongue. Of course, I would never "write" it down in verb form today for fear of upsetting a few lawyers itching for a fight, and after all, it's such an antiquated term, now. So perhaps you have a point, although one might think that the unwitting consumer honors rather than tarnishes the corporate image with its verb-making homage to an electronic process, as well as boosting the product line.

Not quite the same, but isn't this eerily similar to the mistake IBM made with Bill Gates when DOS was barely three lines of code?

And yet, despite armed to the teeth with attorneys, and victories in a courtroom, a famous hamburger chain has helped spawn the term, McJob, which has entered the working vocabulary of an entire generation of authors and writers and wage slaves alike, in a word meaning a lowpaying, cog in the wheel job, a temporary job until something better comes around, a word I've seen published in novels and countless newspaper and magazine articles. A word used disparagingly, or simply as a statement of descriptive fact. Then there's McMansion, an instant hit among the chattering classes in depicting all these large, brand spanking new, but generic crackerbox houses popping up in suburban real estate developments everywhere...

I'm sorry sir, but I find your position nothing short of a misconceived strategy of corporate bullying or simply some sort of backwards advertizing. But to your certain delight, I have removed the offending column, but only because I have abandoned the entire blog, coincidentally just yesterday, for reasons stated in the final entry. But while I comprehend your threat to seek further action as if this phrase "selling power" were some majestic or magical phrase with only one possible grammatical impact, and that is as the title of your magazine, the irony is absolutely hilarious to me. In every courtroom there oscillates at least two, and usually three lawyers with very strong opinions. So there is still hope that common sense and better sense may one day rule the land.

Again, I thank you for writing. And while it is clear I'm not a fan of your PR tactics, and believe your case against my second hand posting of the two words is weak, I do nevertheless appreciate your enthusiasm in educating me on the finer litigation points of trademark law, that fine line drawn between common language and commercial language, where language once thought to be blissfully free of baggage is whisked away from the wonderful plasticity of itself, and somehow spun out of control to re-enter an atmosphere where every word has a price beyond the marketplace because someone else pays a license fee which bestows ownership, a public image, and a profit margin to maintain, even in contexts where the trademark is not remotely impinged.

There are no advertizements on my blog, nor do I make a dime for my troubles. And while I applaud your root capitalism, there are limits to ownership theory, surely one must admit, even in a free and flourishing ownership society.

Regards,

Gabriel Thy

TRACKING THE FIRST AMENDMENT

In light of a recent "libel tourist" piece of legislation passing one house of the state legislature in New York, I wanted to respond to a common supposition many Americans have with regard to the "American experiment" called democracy. To paraphrase the tribal wit of the fictional Forrest Gump, democracy is as democracy does. And given this critical time in our nation's history when economical, cultural, and military strains are weakening our resolve to fight the good fight in some many areas of life, I will start with these three sentences.

No foreign law trumps American law.

No foreign restraint of freedom of speech can over-rule the First Amendment.

Period.

In theory, this is true, but American law is often subverted by the assailing forces of political expedience. If we postulate that the Saudis own a big enough chunk of American assets or debt to force capitulation to terms antithetical to the spirit and letter of American jurisprudence, this is not much different than the Supreme Court's recent decision to overturn property rights law in favor of commercial interests. So surely, we all recognize the ingenuity of certain fee-tweaked minds laboring in the business of hairsplitting to "reinterpret" our most cherished legal language under the banner of protecting the "public" good to make what "once was" now a "relic of the past".

As a staunch culture nationalist first, and a peace-loving kitsch-sharing globalist second, we should indeed keep a watchful eye out for this type of treasonous behavior in our leadership, and even those in the street, our neighbors, our friends, our families, and fight if must be to keep our constitutional freedoms, especially those which strengthen us and protect us from those enemies who would threaten not just these liberties, but our lives and our destiny as a free decent people. Upon reflection of other pressing matters such as lax immigration enforcement of policy, faulty trade agreements acrruing massive deficits, foreign takeovers of critical ports and other security-related operations, we can easily see that something is rotten in Denmark, and it isn't Denmark, but it is the enemy within, both foreign and domestic, who would continue to chip away at common sense and responsible liberty, and threaten all we with proven philosophies hold dear.

DISCONNECTING LAW AND ORDER

Originally published January 24, 1999 on the SWORG SWILL
[an exchange on anachronistic metabolism]

Of course the relative absence of laws and law-enforcers does not mean the absence of control or of social order. But when we speak of the inevitability of hierarchy, or of law, we have to remember that neither hierarchy nor law can historically be shown to bear much relationship to social harmony and order.

Crash responds—true there was not the organized law forces in the Wild Westof America's infancy—but law was still enforced by those who were able to divvy up the cash to hire people to eliminate those that were a threat to their economic concerns—bounty hunters, less official hunters of humans, and Texas Rangers and sherrifs (often recruited from the forces of the outlaws themselves) were used to eliminate those outside the officially sanctioned economic activities—not to mention the brutal elimination of Native Americans and Mexicans—I can't weigh in on Britain's 18th and 19th centuries, but America’s was a time of brutal conquest, murder to eliminate those who were in the way, and suppression of the other—not exactly what I would call a more peaceful golden age—I'm kind of surprised that you would try to mythologize a grand golden past—this is a hackneyed old trick of the rank conservatives in our country who attempt to use code words from the past to make us regress and repress.

Kubhlai retorts—Well that's not exactly what I said. During the two centuries of the Industrial Revolution our society was both stable AND miserable without an organized police force or mountains of laws. The fact that it was miserable not golden makes the fact that it was remarkably stable all the more fascinating (and sad).

In the urban nineteenth century and in the rural centuries beforehand there was no universal or permanent police force, and immensely fewer laws or means of detecting trasngressions of them or of dealing with them from central government. There WAS social control, especially that which derived economically via aristocratic estates, and through the Church (which in effect was the precursor of the mass media since it controlled almost all information). Nevertheless, neither of these institutions had much need or inclination to interfere in much of the private lives of the people. In rural areas, way back into medieval times (especially prior to the normans) the economic interactions which held order together had even less to do with hierarchy being based almost exclusively on the exchange of goods and labour, not capital. Basically you grew potatoes and chickens and swapped them for apples and piglets. If the village didn't approve of someones goings on they would be ostracized—since they had no where to go, they would avoid pissing everyone off. (and no doubt if they were total nutters they would quietly disappear). The main controlling force was that each person was tied into the land they farmed, their village, extended family and manor and had nowhere else to go. There is a hierarchic relation in this but not a complex one with fulltime agents of control.

Language also played a part—the aristocrats spoke french, later german. This ensured that the two differing lifestyles intersected little, and each must have had little notion of what it was like to be other than they were—but this isn't either hierarchy or law either, though it constrained social expectations and ensured that everyone had their place (a double-edged sword from a modern-values point of view, but harmony and stability-engendering none the less.) My only point is that centralized hierarchy and canons of Law are not essential for there to be a society that functions. I am not of the opinion that the absence of police and law was sufficient in order to call that earlier age "golden" or that the mere revoking of all law and the abolition of the police would deliver a better society overnight now. We cannot go BACK to that non-hierarchical non-centralized society, but it does suggest that we can go FORWARD to another one. It is obvious though that the police and the law exist today for a reason. It implies that there is less self-control in society now than there used to be, ie that its order has been disrupted by the state and that brute force now needs to be visibly deployed to reinforce its checks and control. This is my point really, that rather than "Law & Order" going together like "milk and honey" or "bread and butter" they are actually opposites, in that where you have a harmonious ORDER you have no need of LAW and its enforcers.

Such order has rarely been achieved in any near-permanent forms (although the longevity of chinese civilization is an example perhaps), because societies always had exploiters, and the existence of exploiters reflected the fact that technology could not prevent shortages. This must have been a major factor in the bloody history of your wild west. We now have more than adequate technology to eliminate shortage, yet those in power see this very fact as a threat to their exalted position as exploiters. Shortages are artificially created, new ones invented. Technology is bent to control instead of to construction and consequently we have a small number of people with small minds wielding big weapons. This is our crisis.

Shit! Didn't mean to sound like a redneck conservative.

Shocked...

I write: Wow! What a crock of belly-warming bread pudding. K's rendition of an authoritarian-shy but miserable nevertheless past is rather tortured, especially for him, my esteemed English friend who usually honors us with his piercing profundity. The gist of his aurgument however is sound. We live in an age where but for certain spirits of "cruel and unusual" penchants for dangerous exploitation now scattered across the globe in critical places, the species might very well be capable of snatching a "better, more improved" civilization from the brink of the devastating collapse and unreparable destruction we all foresee and fear with unspeakable loathing.

Laws and authority, however, exist from the beginning of time. The arrangements of molecules and the sciences of existence defy our attempt to reject conformity at the basic levels, while seeking to worship unbridled chaos and disunity. Nature, beastly power, religion, legislation, peer pressure, transcendentalism. All have taken a riveting shot at taming or at least shepherding the most basic instincts of earth itself, and this creature called mankind. A mutually assured misery tends to thwart all but the most ambitious of spirits in a time and location of widespread lethargy. Corrupted earth. Corrupted earthlings. Yet, despite our observations of (apparent) corruption, an astute prejudicial order does exist. However, it is our limited humanity's hunger and thirst to attain the incorruptable, the perfect, the eternal, the blissful, which always runs this discussion aground. This unfathomable unquenchable hunger and thirst brings us feast. It also brings us famine. Such is the nature of aspiration when in conflict with other realities on the ground. Frankly, I don't think we will solve this puzzle while wordsmithing over a free-range pizza with a cherrypicker mentality.

In a philosophy clamouring for the participation of all, it will not be the masses, but the brutal acts or two or three ringleaders who determine with amassed fealty our collective fates. Such, it has always been. Unfortunately, these two or three will control and marshal the weapons of surprise and power in nearly all its wicked and wonderful forms. In deed. In spirit. Such as it's always been.

GT

CAIR BULLIES ARE THWARTED

Well, it looks like the tide is turning, and CAIR may be on the first wave back out to the sea from which it came. This is good news for America. This is good news for truly peaceful Muslims. This is good news for you, those enemies in waiting on the Left, who act as apologists for these interlopers, these invaders who are using our system to gain footing, only to have already voiced their agenda to replace the US Constitution with sharia law. How many times do they have to tell us these things. Yes, this is good news for you doubters and appeaser. You just don't know it yet.

Read it all. Check out the three links. Check out the parties in play. Do your homework people. Before it's too late.


PHILADELPHIA - The Legal Project of the Middle East Forum announces its support of Robert Spencer and the Young America's Foundation (YAF), the latest victims of what appears to be a targeted intimidation and defamation campaign by the Council on American-Islamic Relations (CAIR) designed to silence critics of its organization.

Spencer, a well-respected author and the director of Jihad Watch, spoke today for YAF on "The Truth about CAIR" on the campus of George Washington University. As a consequence of this invitation, YAF's president Ron Robinson received a threatening and possibly defamatory letter written by CAIR's acting attorney, Joseph E. Sandler, of the law firm Sandler, Reiff & Young, P.C.

Sandler's letter (available in pdf format here) accuses Mr. Spencer, without offering any factual support, of being a "well-known purveyor of hatred and bigotry against Muslims," with "a history of false and defamatory statements." Sandler goes on to "demand that YAF cancel the subject session or else take steps to ensure that false and defamatory statements are not disseminated," and states an intention to pursue a "legal remedy" against YAF, should CAIR deem statements made by Spencer at the session "false and defamatory."

CAIR's letter appears to be aimed at maliciously harming Spencer's reputation, interfering in his lawful employment, and aimed to discourage both Spencer and YAF from exercising their fundamental rights to free speech and assembly. Furthermore, the letter wrongfully implies that YAF has an independent duty to censor Spencer, and that it may be subject to suit for allowing Spencer to speak on private property. It is our opinion that CAIR's pre-emptive accusations are without merit, without any legal basis, and that CAIR has yet to prove any of its statements as true.

Therefore, the Legal Project hereby gives CAIR and its attorneys notice that it, too, will pursue "every available and appropriate legal remedy to redress any false or defamatory statements that are made" or have been made by CAIR and its attorneys against Spencer. We advise CAIR's staff to govern themselves accordingly.

The Legal Project, established by the Middle East Forum in June 2007, is dedicated to safeguarding the democratic liberties afforded by the Constitution to U.S. citizens, namely the rights to free speech and free assembly. The Legal Project protects researchers and analysts working on the topics of terrorism, terrorist funding, Islam, and Islamism against those who seek to silence them through intimidation, defamation, and predatory lawsuits.

Immediate release

For more information: John Matthies, (215) 546-5406, ext. 16, or Matthies@MEForum.org