Those of you who watch Hulu on a regular basis will have noticed the ubiquitous advertising that is increasingly crowded into all the popular shows. From two or perhaps three 30-second advertisements when Hulu debuted, viewers are now subjected to five or six full-minute advertisements, transforming the vaunted “cable killer” into the equivalent of traditional cable TV — except you can’t skip or fast-forward through Hulu’s ads like you can if you have cable and a Tivo. So Hulu viewers are now paying for the dubious privilege of being forced to watch advertisements, which is great for advertisers and not-so-great for the viewing public, the vast majority of whom would be ecstatic if they never had to watch an advertisement ever again. As an added bonus, Hulu’s one-minute ads are too short to get up and go to the bathroom or make a sandwich, so — unless you pause the unskippable ad — you are quite literally stuck on the couch watching a series of terrible advertisements where fat men do midnight aerobics (Aetna), animated cars sing a cheesy jingle (Prius), and Honda salesmen are asked to urinate into a cup to keep the varmints away.
After being subjected to the Honda ads far too many times while trying to power-watch all three seasons of Whitechapel, through my fog of irritation I finally noticed that the tag line for all the Honda ads was HELPFUL®. That can’t be right, I thought to myself. How on earth would the Patent & Trademark Office be gullible enough to allow Honda to trademark the word helpful, especially when their ads use it in the traditional historical context of a salesman saying “It’s my job to be helpful.” My self-righteous indignation was further exacerbated when I went onto TESS and discovered that, lo and behold, the ad was not lying to me. Indeed, the PTO had granted registration number 3704348 to Honda for the word HELPFUL for “Dealerships in the field of vehicles, namely, cars or automobiles and trucks; advertising services, namely, promoting the services of others in the field of cars or automobiles and trucks,” and “Leasing of vehicles, namely, cars or automobiles and trucks.”
But what does that even mean? Translating this ambiguous language into English, the PTO essentially has granted Honda a monopoly on use of the word HELPFUL in any advertisement for the sale or leasing of cars, as well as in connection with the sale or leasing of any car, automobile or truck. To further translate, that means that if BMW or Audi or Ford or Saab or anyone else selling or leasing cars uses the word HELPFUL in their advertisements or sales pitches, Honda can now sue them for trademark infringement. Honda’s lawyers will also likely make the argument that any variant of the word HELPFUL — such as HELP, HELPING, HELPED — also infringes, so no one else is free to say “Happy to have helped,” or “Glad we could help you out,” or “Can I help you?” in the context of an automobile commercial or sale.
To put it mildly, this is shameful. HELPFUL is a word that has been used every day by salesmen in every field for hundreds of years, and now Honda has attempted to gobble up a chunk of its permissible usage and prevent any car company or their salesmen from using it in the context of selling or leasing a car. While I am not a fan of car salesmen, used or otherwise, I am a fan of the English language and its unfettered use. While the abuse of copyright and the overreaching of patent trolls makes most of the headlines, trademark law has been equally undermined by overgrasping corporations, and there is a systemic problem with all intellectual property law. The intended purpose of these laws was to protect originality and inventiveness, not to stifle human expression, but in application all we have seen for the last 40 years is an increasingly restrictive, abusive series of laws that protect the interests of large corporations to the detriment of inventors, creators, artists, and the general public. Contrary to the PTO’s apparent belief, there is absolutely nothing original about a salesman in any field offering to be helpful, and HELPFUL should never have been granted trademark protection.
If you have any questions, I’d be happy to help clear them up. It’s my job to be helpful, after all.
[I can still say that, right?]
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.