Trademarking time

It’s hard for me to let go on the issue of “‘trademark’ is not a verb,” but I’m certainly not alone.

The most recent installment to park here starts with the tweet below, which picked up a most untoward verbing of trademark by the Chief Justice in the oral argument in Brunetti — but you must follow through the thread to get it:

Not instilling a great deal of confidence

[entire issue is whether mark can be registered, not whether it can be used as a trademark]:https://t.co/L2a7IngnAD#trademarks pic.twitter.com/33sITLTKRT

— Trademarks Are Magic (@TimberlakeLaw) April 15, 2019

One problem with Twitter threads, however, is that you can’t always follow them cleanly, because they can branch off into multiple tributaries. And there are some good thoughts in this discussion, including a couple of my own (well, if I didn’t think that I wouldn’t have a blog) that you might miss, so I am pulling out some of those here, to wit:

But that’s it: I don’t think it’s any better to complicate things in this way. To trademark/copyright/patent (as an intransitive verb) means to apply for registration. It doesn’t deny the existence of any rights absent registration. If laymen are confused, that’s nothing new.

— Devlin Hartline (@devlinhartline) April 16, 2019

Is confusing laymen a thing not to care about?

When lawyers and judges use the word the wrong way, the public is reinforced on its misapprehension that registration creates #trademarks.

Unfortunately the public includes lawyers and judges.

What ensues isn’t hilarity.

— Likelihood ®© Blog (@likely2confuse) April 17, 2019

Now look at Zvi Rosen cutting in with some impressive, if somewhat esoteric, historical background (his specialty) on the related issue of verbing copyright:

I posted this a while ago, but always happy to reshare – the verbed usage has been going on since the 19th century. https://t.co/Ne0dHu34ur

— Zvi S. Rosen (@zvisrosen) April 16, 2019

I think I agree w/Zvi here: the mass (mis)use of the word has clouded it but everyone means seeking & being granted registration. I also agree w/Ed that this belief belies an ignorance in concept & action, yet here we are, screaming into the void. I just avoid that syntax now.

— Kevin Casini (@KCEsq) April 16, 2019

Now, back into the Brunetti lane:

That’s the question isn’t it? Was the justice asking whether you can create an association between a scandalous term and a source in a consumer’s mind or whether the PTO will register such a claim? It’s use of the verb that encourages the ambiguity.

— A. Mazumdar (@AMazumdar_IP) April 16, 2019

And here I’ll let Devlin Hartline have the last word (though if you click through to the thread, you’ll see how it really ended):

Are judges really using it the wrong way, i.e., assuming no rights exist absent registration? I haven’t kept track, but I’ve noticed numerous examples in the case law where it was used as a verb. I’ve yet to come across one where the judge was so confused. (Adding @zvisrosen.)

— Devlin Hartline (@devlinhartline) April 17, 2019

This is as good as it gets, more or less, for engagement on Twitter regarding trademark law and lore. That’s because most lawyers aren’t active on Twitter; and even among those who are, most good ones don’t spend much time on it because they didn’t get where they are by thinking or caring about things that don’t pay. And while, in contrast, most younger law professors are on Twitter, very few of them will engage with mere practitioners of the art they teach. And as academics, even fewer will deign to dialogue with those who do not meet their political purity standards.

So while this thread is pretty good, as I said, it’s about as good as it gets. That is a shame, considering how much we could all learn through discussions such as this one if it weren’t for walls of attitude that some people can’t get over. Or is it just themselves they can’t get over?