The Lounge's Language Monitoring Service recently apprised us of a court case that we thought needed a thorough airing. The case — Infopedia, Inc. v. Air-o-matic, Inc. — concerns an intellectual property issue in its broadest sense, an issue of a kind that is increasingly center-stage in this, the information age. Specifically, the case will decide Infopedia's claim that the phrase "pull my finger" is not protectable by copyright, but is in fact a common descriptive phrase that Infopedia is free to use in promoting its product, an iPhone app. Air-o-matic claims, on the other hand, that it has proprietary rights to the phrase, based on its earlier use of the phrase in the promotion of its own product, another iPhone app with some similar capabilities.
Readers interested in sniffing out the specifics of what these competing apps do are welcome to follow the links provided below: we decided not to go deeply into the particulars of the case here, in the interests of delicacy and decorum. We will look instead at the broader questions raised by the case: to what extent can corporations appropriate bits of everyday language for their exclusive commercial use as trademarks or service marks, and has this phenomenon perhaps gone a bit too far in the Anglophone world and its leading standard-bearer, the United States?
No one would argue against the value of and the need for trademark and service mark protection: private enterprise would hardly be possible without it. Trademarks — whether in the form of logos, sounds, or product names — are often the main currency by which companies distinguish themselves in the marketplace, and companies pay handsome sums to creative talent to develop these identifying signs. Service marks do the same thing for a service rather than a product, though today that distinction is becoming a little blurred.
The nominal strength of a trademark — which we might define as the degree to which it uniquely and distinctly identifies a product — lies somewhere on a spectrum. The weak end of product and service names is dubbed generic: impossible to protect or even claim as a trademark, because the name already generically describes the product in question. This is the case with many lapsed trademarks (aspirin, granola, thermos) and would be the case for someone who tried, let's say, to use or register Laptop as a brand of notebook computers. The strong end of the trademark strength spectrum is fanciful : a word (often an invented one) that so uniquely identifies a company's products that any usage of it is overwhelmingly associated with those products. Examples of this are Kodak, Marlboro, Harley. Trademarks of this kind are usually quite robust, but may require policing by their owners to insure that they do not suffer "genericide": loss of protected status by overwhelming generic use.
In between generic and fanciful lie three other categories — and a veritable goldmine for trademark policepersons and intellectual property litigation lawyers: the gradations are, from weaker to stronger, descriptive, suggestive, and arbitrary. The case we referred to above centers on a dispute about whether the phrase "pull my finger" falls into the descriptive category (making it nearly impossible to protect).
Despite the difficulty of protecting descriptive and suggestive words and phrases as trademarks, many companies like to try because if they succeed even to some degree they get a head start at little cost: they effectively attach their hooks to handles that are already in the minds of us hapless language users, promoting associations of their products with uniquely descriptive language, or common phrases that typically embody positive ideas. Many companies do not attempt to register such phrases as trademarks: the phrase in question would probably not pass the trademark strength test. But companies can, at no cost to themselves, nominally lay claim to a phrase simply by using it (ideally, before anyone else does) to promote their product or service.
One symptom of this, particularly for American consumers, is the ubiquitous and irritating (to us, anyway) appearance of the little reminder TM or SM after any number of ordinary phrases as a way of the manufacturer saying "by the way, we own this now." Thus, you find the phrase "Save Money. Live BetterSM" adorning the myriad nonbiodegradable plastic bags from Wal-Mart that choke landfills, or "I'm lovin' itTM" emblazoned on the discarded McDonald's french fry and Happy MealTM containers that litter the world's roadsides. When your dishwashing detergent even goes so far as to proclaim itself a "Super DegreaserTM," you start to wonder if there is any limit to corporate lexical grabbiness.
We don't mean to suggest that the argument in favor of robust language-grabbing rights is indefensible, and indeed it is the argument that you would expect to prevail in an economy and a culture built on capitalism, private enterprise, and unrepentant consumerism. But the part of the current system that smells is the notion that the ultimate pool of public domain property — language, in the form of common phrases and collocations that have gained their status as a result of popular usage — is up for private appropriation. Corporations simply invade, seize unsuspecting denizens, and say, in effect, "you belong to us now." Of course this system can be sustained only by an industry of lawyers and vigilantes who vigorously police, threaten, sue, and countersue. Is it worth it? You wonder what all of these folks would be up to if their focus were, say, making the world a better place to live.
Readers interested in the brief of Infopedia, Inc. v. Air-o-matic, Inc. can read it here. This case filing is perhaps unique among its peers in containing the phrase "deep stirrings of flatulence," a phrase one hardly expects to encounter in a court filing.
Readers whose sympathies lie more with the man on the street than the one in the corner office may like this website and blog, which views nearly all intellectual property protections as a Bad Thing:
And here is a list of everyday words that you might not know are actually trademarks: