Turn the other one? Or liberty? Or death?

Originally posted 2009-04-23 11:46:26. Republished by Blog Post Promoter

“Trademark” is not a verb.

Right — we will resolve these all here and now.  Key issues.  Fish or cut bait.  Or we most assuredly will all hang separately!

The Daily Mail reports, ” Cheeky team applies to use ‘Obama’ as a European trademark“:

A group of enterprising Spaniards is set to win the European trademark rights to a word with instant global recognition – OBAMA.

EU trademark rules once stopped opportunists turning the names of heads of state and other prominent figures and celebrities into branding gold.

But now, unless the use of an instantly identifiable name is deemed to be an act of deception, little else prevents the first-comer grabbing the rights.

Trademark is Not a Verb, Mr. Hart

Trademark is Not a Verb, Mr. Hart

This item stands for two key points which we all must know; nay, knit unto our very hearts.  Permit me some down-the-middle pedantry here.

1.  Trademark is NOT a verb.  Why do I refuse to give up my hopelessly-outnumbered position against the use of the word “trademark” as a verb?  This usage is everywhere, even on the INTA discussion list.  The reason is not only because I am a reactionary.  (Not only.)  It is because the whole point of U.S. trademark doctrine — that trademark rights are, and by the grace of God and Senator Lanham ought to be, earned by use.  First comes secondary meaning, then comes “rights.”

As I have said before, just as you cannot be “bar mitzvahed,” you cannot “trademark” something.  The “Trademarking” is not “done” via the filing of some paper or granting of a registration.  And this fact is obscured by the awful neologism “trademarked,” which suggests you can … well, it suggests you can do exactly what we’re reading this “cheeky team” did in the Daily Mail piece, and which a decent respect to the opinions of mankind requires that we all acknowledge they should not be able to ought to be do.  Ing.

Trademark is Not a Verb

Trademark is Not a Verb, or Give me Death!

2.  Speaking of self-evident truths, we solemnly publish and declare that even it had not become necessary for one people — Amur’ca — to dissolve the political bands which had connected it to another — England, of course — the injury imposed on the American language by the latter by the jarring, ugly and sick-making term “cheeky” as in the Daily Mail headline would make it necessary now.

And if I have to live with “trademarked” to never again see “cheeky,” may the Supreme Judge of the world, in recognition of the rectitude of my intentions, so grant me.

Thus endeth the lesson. Trademark is not a verb.

As to “European trademark” – “sheesh!

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Author:Ron Coleman

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10 Responses to “Turn the other one? Or liberty? Or death?”

  1. Tal Benschar
    April 25, 2009 at 10:09 pm #

    Ron:

    You do realize that European trademark law differs from U.S. law on precisely the point you make? There, registration, not use, is what vests the owner with rights. That’s what permits these shenanigans to occur more easily there than here.
    (It also leads to many headaches and possible falling into the trap of “fraud” on the Trademark Office when you try to cross-register European registrations here.)

    • April 25, 2009 at 10:34 pm #

      I sure do. As you know we have represented some of the same European trademark owners! ;-)

      That’s why we needed a Revolution, Tal — precisely to sever the bonds between Amur’ca and the decadence of the Old World, still preserved today in so many ways not least including their trademark law!

  2. January 9, 2010 at 7:56 pm #

    Ron, count me as a brother in arms fighting the valiant fight to keep “trademark” a noun.

    Many hours I’ve spent in linguistic choreography to present a point of trademark law and still maintain “trademark” in syntax purity — efforts, I humbly suggest, that are far beyond the skill of amateurs and, perhaps, mere mortals, but which are, alas, the dues we owe to maintain fidelity with [U.S.] law and our calling.

    • January 18, 2010 at 8:40 am #

      Yep, that’s you and me, and a very “selective” remaining few.

Trackbacks/Pingbacks

  1. Copycense - January 10, 2010

    Is copyright a noun or verb? (via @corecopyright http://bit.ly/8LiEG4. Trademark law http://bit.ly/82o6yx (via @RonColeman)

  2. Jimmie - July 27, 2012

    Turn the other one? Or liberty? Or death? http://t.co/eb8d2Ike What #trademark is. | LIKELIHOOD OF CONFUSION®

  3. Jerome McDonnell - July 27, 2012

    Don't it just get your goat? @RonColeman http://t.co/izzVNPzP What #trademark is. | LIKELIHOOD OF CONFUSION®

  4. A bunch of WHARTON business | LIKELIHOOD OF CONFUSION® - August 16, 2013

    […] couldn’t do much about it because, as the New York Times puts it,  ”place names cannot be trademarked.”  Neither can colors, of course — sorry, […]

  5. Search for resolution | LIKELIHOOD OF CONFUSION® - October 29, 2013

    […] Irrespective of the specific settlement terms, ending this case is a strategic win for Google because it takes out the last “major” US trademark owner challenger to AdWords.  Combined with the recent dismissal of the Jurin lawsuit, Google is now down to two pending US trademark lawsuits over AdWords: CYBERsitter and Home Decor Center.  Despite CYBERsitter’s recent intermediate “win,” I don’t think either of the two remaining lawsuits are dangerous to Google.  As a result, Google is tantalizingly close to successfully running the table on all of the US trademark challenges to its AdWords practices.  When this happens, Google will have legitimized the billions of dollars of revenues it makes by selling trademarked [sic] keywords in AdWords. […]

  6. A catalog of errors: The PTO is chained to outdated concepts | LIKELIHOOD OF CONFUSION® - March 19, 2014

    […] we all know, is a function of how it’s used, not whether or not it is registered (or “trademarked“).  And as demonstrated by this later, related post by Steve – based entirely on […]

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