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.
http://www.jdsupra.com/post/documentViewer.aspx?fid=743eb537-8d05-4747-ac91-01d1db801e46

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:
http://www.againstmonopoly.org/

And here is a list of everyday words that you might not know are actually trademarks:
http://www.visualthesaurus.com/wordlists/2


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Orin Hargraves is an independent lexicographer and contributor to numerous dictionaries published in the US, the UK, and Europe. He is also the author of Mighty Fine Words and Smashing Expressions (Oxford), the definitive guide to British and American differences, and Slang Rules! (Merriam-Webster), a practical guide for English learners. In addition to writing the Language Lounge column, Orin also writes for the Macmillan Dictionary Blog. Click here to visit his website. Click here to read more articles by Orin Hargraves.

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Comments from our users:

Wednesday April 1st 2009, 8:31 AM
Comment by: Geoff A. (United Kingdom)Top 10 Commenter
I write fiction, so can you help me with the implications of your article for me?

When I write about a game of frisbee or a coat being fastened with velcro or someone doing the hoovering, in these cases should I

a) use a capital letter (Frisbee, Velcro, Hoovering)?
b) affix a TM in superscript to the words?
c) write off for permission to use these terms?
d) pay a licence fee for their use?
e) studiously avoid their use?

Thanks!
Wednesday April 1st 2009, 9:36 AM
Comment by: Elisa B. (Addison, TX)
Geoff, I think you just do whatever you want with the language of trademark expressions. We're in the age of Wikipedia and Facebook. Most of the younger global public has no idea of the historical context or arduous birthing of these commodities, nor cares. Money will not be made from the licensing of words - or music, art, books, movies, etc. - but by one's ability to manipulate the virtue of their "being imitated." Methinks we must become a people who can eat and flourish on such electronic flattery and "ripping."
Wednesday April 1st 2009, 9:49 AM
Comment by: Gena W.
I'm sitting at home with an horrendous spring cold and marveling at the ridulousness of the Kimberly-Clark Corporation, which apparently has trademarked this phrase on the bottom of my lotioned tissues box: "It Feels Good to Feel." Interestingly, the French translation on the right panel is not trademarked, so either the Rrench resist this absurd appropriation of non-memorable phrases--or someone has beaten K-C to "Touchez au mieux-etre."
Wednesday April 1st 2009, 9:59 AM
Comment by: Alastair B.
Excellent piece - thanks.

Trademark-snaffling is an absurd area of modern corporate life. As a creative, the purpose of a tagline I know to be about an engaging and human communication at the end of a piece of collateral. Slapping 'TM' on the end instantly devalues the human quality of that line, reducing it to an 'owned' - and therefore dehumanised, and therefore useless - mantra.

The originator is therefore left with a piece of stale, ringfenced intellectual property of immediately decreased value to the brand. And since infringement of that copyright (certainly in big brand terms) only serves to propogate the original brand, the whole legal shebang seems like nothing but an expensive exercise in foot-shooting/self-dulling.
Wednesday April 1st 2009, 10:02 AM
Comment by: Barry M.
Excellent. Given the date of publication I was fully expecting this to be a hoax. Reverse April Fool's on me.
Wednesday April 1st 2009, 10:48 AM
Comment by: Bosse B.
Yeah, it's 'funny' how one's reading modus is influenced by today's date, huh?
Wednesday April 1st 2009, 11:58 AM
Comment by: Alex P. (Sydney Canada)
Oh, no. I just ate an "apple." (Amazing, isn't it; an apple.)
Wednesday April 1st 2009, 12:38 PM
Comment by: Sandra K. (Downey, CA)
It is ridiculous at some of the things firms try to trademark. I remember George Lucas suing Sony for an ad with a picture of one of their speakers for a stereo and the phrase Feel The Force was above it. Lucas won, having the copyright on The Force from Star Wars. While I love the films, I find that complete idiocy. What'd he think Sony was doing? Cashing in on Star Wars? More like trying to sell how bass was true from their speakers.

And a writer does have a fine line. We are reminded by writers groups and the New York Publishers that certain trademarks have to be left off. I can write someone stopped off for coffee and donuts before they went to see someone, but I cannot say they stopped for Starbucks, or Krispy Kreme, or Dunkin' Donuts. Better to be generic than face a suit, the publishers say.
Wednesday April 1st 2009, 1:13 PM
Comment by: Andrew Robert T.
genericide? What's it's meaning?
Wednesday April 1st 2009, 1:20 PM
Comment by: Ben Zimmer (New York, NY)Visual Thesaurus ContributorVisual Thesaurus Moderator
Andrew: genericide is "the process by which a brand name becomes a generic name for an entire product category." We could just call it genericization, but trademark holders (and their lawyers) like the more dramatic -icide suffix to imply that the brand name is being "killed" metaphorically. (So it should really be called trademarkicide or brandicide.)

[Update: Much more here.]
Wednesday April 1st 2009, 2:20 PM
Comment by: Janet C. (Leesburg, VA)
Is this an April Fool's joke?
Wednesday April 1st 2009, 10:42 PM
Comment by: Clarence W.Top 10 Commenter
Quik-Trip (QT) is a local corporate convenience store chain. For decades, they managed to prevent franchise stores such as Circle K and 7-Eleven from getting a foothold. The franchises finally managed to gain a presence, but lifelong residents still refer to virtually any convenience store as a Quik-Trip or QT. It would seem then that a type of genericide occurred, but not from any effort to take advantage of the long standing brand on the part of the newcomers.
Thursday April 2nd 2009, 12:11 AM
Comment by: Kristan J. (Saint Paul, MN)
I sense an anti-corporate, anti-capitalism bent to this article and the comments that follow. I'm sure if you looked long enough you could find many more "stupid" things corporations do to protect their brand. In the meantime, many thousands of businesses large and small employ many millions of people, providing them with the income to own a home, raise a family, take a vacation, and give to the Sierra Club.

I'm sure there are some who would scoff at the idea of writing about language for a living. I don't. Good for you! Every day new vocations are created, allowing people to get paid for doing what they love. That's what happens in a free market. Sadly, we're becoming less free every day.
Thursday April 2nd 2009, 10:40 AM
Comment by: Elisa B. (Addison, TX)
While I agree with Orin's main point, "...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," I still feel we must see it in the wider cultural context. I mean, we have scientists and university students trademarking parts of the human genetic code in the name of medical breakthroughs. Language is not the ultimate pool, but part of the wider ocean being legally cordoned off to all us ships passing in the night. The usurping will not prevail. Over time humanity sees this self-aggrandizing lottery for what it is and commits tiny revolutions to break it up. Trademarking and other claims to what is essentially public property will get someone a bit of cash now if they have good lawyers, but eventually they lose to the laws of public fairness and decency. Look what happened to major recording labels and movie distribution houses in the advent of digitization and the internet. No one cares if they make a dime now because they cheated the public for too long. Hindquarters are now being bitten. Corporate identities were more consumer friendly back when ad departments gave us clever jingles we were allowed to sing all day long FREE (I still want to be an Oscar Meyer weiner) than a simple phrase we're barred from repeating.
Saturday April 4th 2009, 6:21 PM
Comment by: A. Z.
I have to say that I cannot agree with you even on one sentence. This is slightly eccentric and totally atrocious.
Sunday May 17th 2009, 6:53 PM
Comment by: Adele C. M. (Charlotte, NC)
I think we may have been recently witnessing some of the things that eventually happen to greedy companies. They have become absurd.

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