So, I've been wondering. How do companies go about effectively protecting their trademarks in the age of the Internet? This came up a couple of weeks ago when I was having dinner with an IP attorney friend. We wondered about what steps companies have to take to protect themselves these days.
Some background, for folks who aren't familiar with trademarks: Unlike patents or copyrights, there's nothing inherently creative in a trademark. It's merely something that uniquely identifies your business. It can be an ordinary word, a real name, something made up. All that matters is that it identifies you and not your direct competitors.
You can claim trademark protection only within your sphere of business. There's nothing to prevent me from starting McDonald's Photographic Studio, because that's not an area of business in which McDonald's the hamburger chain operates. Similarly, Apple Computers (now just Apple, Inc.) and Apple Corps Ltd., the holding company founded by the Beatles, manage to coexist. That relationship has proven a dicey one, because the boundaries between computers and entertainment continue to morph. About every dozen years, they have to renegotiate who owns what turf.
Trademarks can be images or "looks." If I open a hamburger stand named CteinBurger, done up in a red and yellow color scheme with a yellow arch in front of it, I will hear from The Clown's attorneys. That's called "trade dress" and McDonald's has it protected.
How do you protect a trademark? Simple; you register it! First come, first served; prior use and art don't particularly enter into it.
Seems straightforward, right? Well, there's a big catch. If your trademark becomes (or already is) a generic term instead of being a unique identifier for your enterprise, you lose your protection. Contrary to what a reader commented several weeks ago, this is not happening to Xerox, FedEx, or Band-Aid. They are solid trademarks and are in little danger of being lost. Those words have not become common synonyms for "copy," "ship," and "adhesive bandage," and are not likely to.
Trademark holders have to be diligent and actively stamp out misuse of their marks. Xerox's attorneys regularly sent out letters to magazines reminding them that Xerox was a trademarked term and the article that referred to "Xeroxing a document" should have said "copying a document." Xerox fought hard to preserve its trademark. Nowadays, there's little risk, because there are so many copier brands on the market that few people automatically think Xerox when they think "photocopy."
Verbing the noun is okay so long as it refers to what's been trademarked. There's no risk when people talk about "googling" or "photoshopping," so long as they mean that they are using Google or Photoshop. Should people start generally saying "I googled Ctein on Bing" or "I photoshopped that picture in iPhoto," Google and Adobe will have a problem on their hands.
So far as I know, trademark law doesn't care about good intentions. It's not enough that companies make the effort to get people to use their trademark terms correctly. They have to succeed in preventing genericization! Here's where my wondering starts. It seems to me that this is an increasingly difficult thing to accomplish. In the era of print publications, there were relatively few sources of potential misuse to track. That's no longer true. There are a gazillion different little online publications, most of them written by people who wouldn't know a trademark if it hit them over the head. The fourth estate is a lot harder to police these days.
What are companies doing about this? How are they policing the vox populi when those numbers are expanding exponentially? I'm sure we have some trademark experts and representatives from various companies reading this; I'd love to hear their comments on how they handle these issues and what their policies are.
Ctein's regular weekly column appears on TOP every Thursday morning.
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Original contents copyright 2010 by Michael C. Johnston and/or the bylined author. All Rights Reserved.