Nailing the arm and hammer trademark

Armed and dubious

Armed and dubious?

It’s the eve of Labor Day — what better time to talk about that great symbol of  militant labor and refrigerator deodorizing, the ARM & HAMMER?

I have in the past wondered about a given trademark and found, to my surprise, that as well known as it was, the trademark story itself had gotten scant attention.  This was certainly the case regarding the now-defunct trademark, BATES STAMP.  Not so, however, regarding the Hammer.

When you see this symbol you probably just think of baking soda. But, comrades, to bake a few eggs, you know, you’ve got to, um, hammer some shells.  As one interesting little web page, obsessed (interestingly) with the link between what we’re talking about here and, um, Al Gore, explains (and demonstrates by competent evidence):

[T]he Arm and Hammer symbol does not originate with the Church family business, but rather has been widely used by others for other purposes. Traditionally, the Arm and Hammer image symbolizes manufacturing or industry, as for example on Wisconsin’s Coat of Arms and State Flag.

In Lewisburg, Ohio in 1932, an Arm and Hammer rubber stamp was used to cancel postage (www.stuartkatz.com/fancycovers3.htm), the symbol presumably employed here in its reference to manufacturing or industry.

To approach closer to the point, the symbol was also adopted by the American Socialist Labor Party, a precursor of the American Communist Party. Why should Socialists or Communists have been drawn to the arm and hammer? One imagines primarily because of its association with labor; however, the image may also carry a suggestion of militancy, of a powerful arm able to smash opposition.

You can start out, of course, with the official story from the Church & Dwight people, who make Arm & Hammer baking soda and rightly write to celebrate their famous brand, which, baking-s0da-wise, is described not as the symbol of manual labor (more on that below) but as “the standard of purity”:

When you think of ARM & HAMMER™ Baking Soda, you think of our little yellow box. That box has a lot of history – and the high quality it represents is appreciated by a new generation. For more than 165 years, people have chosen pure, versatile, effective, environmentally safe and economical ARM & HAMMER™ Baking Soda for baking and countless household & personal care uses.

Today, consumers appreciate that ARM & HAMMER™ Baking Soda is an effective, yet gentle cleaner and a real alternative to using harsh chemicals, which makes it great for use around food, kids, and pets. It can also be used to replace other household and personal items that may have ingredients that are harmful to the environment.

For more than 165 years, Church & Dwight Co., Inc., the makers of ARM & HAMMER™ Baking Soda, have been a fixture in your home. Our yellow box is so familiar and our logo is one of the most trusted trademarks. Follow our Timeline to see how ARM & HAMMER™ Baking Soda, and our company, has developed over the years.

True dat.  But not de whole true.  

Read More…

Whither The Unwritten MSM Constitution?

Originally posted 2006-01-02 10:32:32. Republished by Blog Post Promoter

Glenn Reynolds writes:

THE NEW YORK TIMES’ PUBLIC EDITOR, Byron Calame, criticizes the Times’ handling of the NSA story. Jeff Jarvis calls Calame’s column “almost tough,” and points to this post by Jay Rosen.

The Times’ behavior on this story, and the Plame story, has undermined the unwritten “National Security Constitution” regarding leaks and classified information. Since the Pentagon Papers, at least, the rule has been that papers could publish classified information in a whistleblowing mode, but that they would be sensitive to national security concerns. In return, the federal government would tread lightly in investigating where the leaks came from. But the politicization of the coverage, and the outright partisanship of the Times, has put paid to that arrangement. It’s not clear to me that the country is better served by the new arrangement, but unwritten constitutions require a lot of self-discipline on the part of the various players, and that sort of discipline is no longer to be found in America’s leadership circles.

* * *

Andrew Sullivan seems to think that I’m blaming the NYT editors for everything. No. If, in fact, the Administration broke the law, then there’s a story here, though that remains a pretty big “if” at this point. But he goes on to ask the same question I did, and everyone else has: Why did they wait for a year if it was such a big deal? And if reporting the story a year ago would have been too damaging to national security, why isn’t it too damaging now?

And there’s another point: A few years ago, I’d have given the NYT the benefit of the doubt. Now — because of the paper’s bad behavior of the past few years, which Andrew played a major role in pointing out — I don’t. That absolutely is the fault of the Times’ editors.

And its ownership.

The Times, of course, doesn’t have to tell anyone anything. It’s a private company. But as has been mentioned more times than you want to hear, the self-anointed Fifth Estate considers itself a thing above the normal citizen, and indeed the “unwritten constitution” referred to by Instapundit is premised on just that. Those unwritten constititutions really are a problem, though, just as Glenn says: in all but the most unusual cases, say perhaps England, they fall apart because the incentive to cheat for short-term gains — especially when faced with what at the moment looks like a threat to the Arrangement — is just too great. And maybe because they lack, at the end of the day, that legitimacy that genuine constitutions have.

Is “anarchy” in the press a good thing? And is oligopoly its only alternative?

UDPATE: TigerHawk seems to agree, and in fulsome detail. (Via Instapundit, again.)

UPDATE: More reasons why special privileges merely for owning a printing press may not be such a great idea.

No more free ride

Originally posted 2007-11-06 12:53:29. Republished by Blog Post Promoter

Attributor is a new program that online publishers can and do use to trace their verbal content across the Internet and see who is using how much of their stuff without paying or attributing.

Reading the articles (this one sent to me by my brother, software engineeer Glenn Coleman) it seems clear that most media outlets are interested in getting credit, and links back to their sites, for typical use of their materials, i.e., use that is defensible as “fair use” under the Copyright Act:

CEO Jim Brock gave me a demo of Attributor last week in the lobby of the Waldorf Astoria. Attributor is already indexing 100 million Web pages a day (15 billion total so far), but it is not a keyword index. It looks for bigger blocks of content. Right now, it can handle only text. Images are in beta. And video matching will go into beta early next year. If you are a publisher that is a customer of Attributor, it ingests all your content and comes up with matches. Attributor splits up the world between sites that exhibit extensive copying (more than half of an article, for instance) and just some copying. It shows which sites have linked back to the original source and which have not. “Often, that’s all they want—a link,” says Brock.

That last sentence is key, and tracks the advice I give inquirers in my professional role (including my job as general counsel of the Media Bloggers Association): If you help generate traffic to the media site that produced content that you’ve excerpted, you far more often than not have inoculated yourself against an infringement claim, if only from a business (as opposed to legal) point of view.

Now Attributor is here to enforce that eminently reasonable deal. It would be eminently reasonable, if you’re a blogger or other Internet publisher utilizing other people’s content, to be very aware of it.

Google Plaintiffs Start Here

Originally posted 2005-01-23 11:57:00. Republished by Blog Post Promoter

It may or may not be true that sooner or later, everyone in intellectual property law will be suing Google.

Well, it’s almost certainly not true. But there’s no question that this dominant player in the Internet (yes, I own a few shares!) (to be exact: four. or five.) is starting to present a ripe target for many a frustrated trademark or copyright owner that is miffed about having its IP properties diced and sliced the Google Way. (UPDATE: And some others.)

As a service to the IP bar, and via the No Watermelons Allowed blog, here’s the first order of business: Coming to a coherent technical understanding of how Google works, courtesy of the Computer Society of those rapscalions at the Institute of Electrical and Electronics Engineers.

Be sure and give me a head’s up when you find someone who has abstracted this into English. But frankly, who wouldn’t like to see more heavy-lifting, drawing on this sort of nuts and bolts technological insight, in the many judicial opinions that brush so very broadly on the issues that will have a vast impact on the Internet and the economy to which it has given birth. For nearly a decade now judges have been ruling on critical cases involving the Internet and IP, trade law and other areas of law without evincing much proof of having gone beyond their own hunches (and maybe those of their clerks) as average Internet Explorer users.

In reality, Congress should be making these calls, not the courts. The question, for example, of whether a search engine is or is not causing likelihood of confusion by delivering results utilizing key word searches that happen to be someone’s trademark is essentially a metaphysical one — which is to say that judges are making policy decisions, which Congress is supposed to do. There is no right or wrong answer to whether someone searching for Coke, and getting the Pepsi website, should be protected from such “unfair competition.” Congress has the horses to get people knee-deep into articles such as this one, to utilize their hard-care technology expertise, and to make appropriate legislative recommendations.

This is all starting to matter too much to be left up to District Court judges in the most overturned Circuit in the country. Or have you heard what I am told is the latest bit of waggery among certain sectors of the bar: How does a typical U.S. Supreme Court opinion now begin? “This case is on certiori from the Ninth U.S. Circuit Court of Appeals. The other grounds for reversal are as follows….”

Isn’t it possible for the legal-political-commercial regime to make some attempt to manage, rather than be managed by, the development of the law of the Internet?

(By the way, don’t have a cybercow. I said manage development of the law of the Internet — not “manage the Internet” or “manage the development of the Internet.”)

Mesh Media Strategies

Originally posted 2007-07-18 18:04:57. Republished by Blog Post Promoter

Bill Hobbs has a new blog!

A certain NFL team is on the warpath

Sorry about the pun — but then again, I’m not the PTO; then again, too, my attitude toward “scandalous and offensive” ethnic marks is different from that of lots of people, too. This one, in particular, has long rubbed me the wrong way.

Regarding the Redskins appeal of the REDSKINS cancellation, here, courtesy of The Trademark Blog, is the complaint in Redskins v Blackhorse:


Unsurprising:  Great reliance on the issues raised by the dissenting TTAB judge regarding the serious evidentiary problems with the TTAB ruling.  This is the core argument in our Federal Circuit brief on behalf of THE SLANTS.  Also interesting:

  • There’s a cause of action for a determination that Section 2(a) is void for vagueness, which we also argue in the SLANTS brief;
  • The Redskins claim that the ruling, coming so late in the historical game in terms of the history of the REDSKINS trademark, did not merely err in terms of laches, but that due to the long use of the trademark by the team violates the Due Process Clause and the Takings Clause of the Constitution;
  • Particularly interesting:  It’s de novo review by the District Court in Virginia, not an appeal to the Federal Circuit.  A party appealing from a TTAB ruling can, in most circumstances, do either of these.

Did the Redskins take the appeal to the District Court approach due to a perception that, based on its recent track record, the Circuit is inclined to approve 2(a) determinations of scandalous ‘n’ offensive as a rule? Probably not. It probably has more to do with the fact that, unlike in THE SLANTS case, the REDSKINS case is premised on an unusually rich factual record.  The team’s argument is that, given every opportunity imaginable to prove its case, the plaintiffs Blackhorse failed.   Remember that the burden on the  particularly onerous one:  Proving that the REDSKINS marks were disparaging to American Indians at the time they were registered, i.e., 1967-1990.

Trademark lawyer Ron ColemanI don’t have much trouble guessing, even assuming, that the marks were, in fact, disparaging to that group.  Doesn’t it make sense that it would be?  Anyone can see it.

That’s a very different kettle of fish, however, from proving it by a preponderance of the evidence.

On reading the REDSKINS decision, I was not surprised to find that the nature of the “proof” relied on by the TTAB was, as it admitted in its opinion, highly “inferential.”  Given the burden on the plaintiffs, and the profound interests, including bona fide commercial ones premised on a very reasonable presumption of the correctness of an agency’s repeated administrative decision, the idea that the TTAB would be swayed by so much inferential evidence is pretty surprising –

Suprising… Read More…

The key to the kingdom

Originally posted 2007-08-17 13:36:51. Republished by Blog Post Promoter

american-airlines-vintage.jpg

Sooner a later, “the courts” are going to decide whether or not keyword advertising is a trademark infringement. Here’s the latest sortie taking off, via David Fish.

Resurrection

Originally posted 2007-04-14 23:28:25. Republished by Blog Post Promoter

Resurrection is a popular topic in branding and trademarks. There’s Tylenol, of course, which returned from a near-death experience; and Pepsi, which promised to provide one. Now William Lozito at Name Wire notes the phenomenon of

[S]taid, established brand names like GE and Westinghouse … being licensed to consumer electronics manufacturers overseas, mostly in Asia, and com[ing] back home to dominate a segment they did many years ago.

GE, in other words, brings good things back to life. He wonders a little about whether we’re calling a spade a spade here –

I can’t help but think, however, that many consumers, when the buy products by Westinghouse, Honeywell, GE or Sylvania, must be under the impression they are “buying American.”

– but he need not. If GE says that TV is a GE, it is a GE. And that’s a privilege only GE has. They stand behind it, to whatever extent that may mean, regardless of what language they speak and what they serve in the commissary of the McFactory that spat it out. As William comes around to acknowledging, after all:

I suppose in a world where close to 40% of a Ford is made overseas, “buying American” is harder and harder to do.

And it’s increasingly less meaningful — politically, economically, technologically.

Which isn’t to say that I can’t wait till my Nissan lease is up and I can get back into a Buick. I just can’t get used to Japanese cars. I just hope the other big General — General Motors — is in business this time next year. (And that I am. I may be outsourced by then!)

How bad is really bad IP blogging?

Originally posted 2010-10-08 00:01:59. Republished by Blog Post Promoter

I don’t like to call out other bloggers, but I do it sometimes.  People are gentle with my mistakes — Steve Feingold being the model of graciousness this week (as he always is, of course!) — usually.

Hand shredderBut if you write a blog and you jack it all up full of SEO juice and it then gets picked up by my daily Google Alert for “trademark” and then I poke around on your oddly-written Minnesota Attorney Blog blog where you have a category called “Minnesota Intellectual Property” — and hey, I know as well as anyone that they do intellectual property in Minnesota, so I’m not going to snark you out on that — and then I find that each post has this canned-SEO preface to it that says, Minneapolis Intellectual Property Attorneys,”… you know, just in case someone’s, like, searching for the phrase MINNESOTA INTELLECTUAL PROPERTY ATTORNEYS or something… and I click one of the two posts in this category by these “attorneys…”

It had better be good, brother.

So:

Trademarks do not have to be registered in order to be valid. The person who uses a mark in commerce first obtains a trademark on that mark. This mark indicates where a good or service came from. It shows the source. The person who obtains a trademark on a mark also obtains the right to prevent others from using that mark in commerce.

No.  Not good.

Not, not, not, not good.

I feel like Scott Greenfield.  But sometimes, somebody’s got to do it.

Not.  Good.

Minnesota Intellectual Property.

Attorneys.

Bad.

Hershey keeps pushing it

Originally posted 2008-10-30 00:01:29. Republished by Blog Post Promoter

And as usual, Marty’s on top of it like chocolate sauce on vanilla ice cream.

Hershey’s (Hershey’s’s?) pushing of the wrapper, foil and all, is one of our regular obsessions here.  You know, someone ought to do something about these guys…

Likelihood of comprehension

Originally posted 2007-01-17 00:41:21. Republished by Blog Post Promoter

You must read Marty Schwimmer’s “Annotatation of ‘How Apple could fight Cisco.’”  You’ll learn a lot about trademark law if you do and just may sound a little more educated at the next cocktail party.  Via TM Branding Cap.

Editor and Publisher: Stop the new trademark dilution bill

Originally posted 2006-04-25 15:50:18. Republished by Blog Post Promoter

Dilution

Steve Yahn at Editor and Publisher tries to stir up some interest in what should be — search-term advertising and other flavors of the month aside — the trademark story of the moment:

Embedded deep in H.R. 683, “The Trademark Dilution Revision Act,” which awaits what may well be a last look in the U.S. House of Representatives before being signed into law by President Bush, is language that would remove key free-speech protections that have been part of U.S. trademark law since 1996.

Read the whole thing. He’s right on: This bill will make the Lanham Act about as self- executing for plaintiffs as you could hope, at least for “famous marks.” Be very scared if you’re not the owner of such a mark… or its retained counsel.

UPDATE:  Reaction at Editor & Publisher.