As an intellectual property lawyer who has been known to tryst with a trademark or two, I often find myself in the position of criticizing the trademark laws, which like their brethren over in the land of copyright continually stretch beyond their proper metes and bounds and reach for the forbidden stars. More prosaically, everyday I see something trademarked that offends my tender sensibilities.
A few choice examples.
The “For Dummies” guides.
The “Little Book” series.
The “You Might Be a Redneck If . . . ” franchise.
While I actually like all of these concepts, and may even have Golf for Dummies floating around somewhere, in my middle years I have become increasingly conservative about what I think should be taken out of the common lexicon. How-to books for Simple Simons have been around forever under various titles, and I take issue with the first guy in line opting to make a grab for the concept — whether it be under the Dummies, Idiot’s or any other rubric. If you ran out tomorrow and tried to register a new catalog of self-help books under the Simple Simon’s mark, in my view you should be taken out back and put down like a horse with the colic.
The ubiquity of national branding has given rise to a mob of know-nothing business majors who are nonetheless bright enough to realize that snapping up catchy titles, marks, and phrases is akin to staking out claims to property during the Gold Rush. The great land grab of 1849 is nothing, however, compared to the hordes of cybersquatters, trademark vultures, and depraved word haters who are systematically making it harder for people to express themselves as they like. I realize, of course, that there are plenty of wordsmiths out there turning chaff to gold, and that few people will care if they can’t call their next book The Little Book of Me without paying a license to the Little Book franchise, but it simply insults my Platonic idea of the universe that this is so.
Take, for example, Jeff Foxworthy’s “You Might Be a Redneck If . . . ” idea. Originally airing as a skit in his stand up comedy routine, it became so wildly popular he decided to franchise it. Which he succeeded in doing, despite a lawsuit or two along the way in which other comics complained that redneck jokes — like hick jokes, spic jokes, fat jokes, black jokes, gay jokes, and the jokes of straitlaced white men from the midlands — were the stuff that comedy was made of. The very stuff, in fact, that comedy has been made of since time immemorial — before the Beverly Hillbillies found oil, before Shakespeare and his cast of country bumpkins wended their way across the realm in their oxcart, before the fat lady sang the tune that let Father Time slide down the Midgard Serpent’s back and plant his stately feet in our fair realm.
Even if there is a fair amount of latitude when it comes to infringing on these so-called marks, this is not what trademark law was intended to promote. Just as the Sonny Bono Copyright Extension Act makes a travesty of the founder’s intent that copyright should last a mere 14 years, so too does the Trademark Office’s over-liberal application of the APPROVED stamp thwart what was intended as a fair compromise between business interests and the commons. As in all arenas these days, however, the commons have been turned into the realm of the commoner, while what remains of our collective heritage has been appropriated by the near-sighted trio of Greedy, Grasping, and Opportunistic.
Although that actually may be the name of the law firm that is helping speed the process along.
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.