Part 3 of a 3-Part Series on Celebrity Trademarks:
As the number of trademark applications continues to increase, whether for celebrities, craft beer names, or anything else, the market for commercial creativity decreases. This may initially seem like a small matter; however, it is truly a growing concern. Unlike copyright or patent protection, trademark rights are granted in perpetuity – meaning that trademark protection and enforcement could continue, theoretically, forever, tying up the use of a phrase to the benefit of one person or company in perpetuity. Additionally, and perhaps even more troubling, it gives corporations and celebrities a weapon to intimidate others into not using the phrase or, really, anything even remotely similar – even using the phrase in ways that are not restricted (i.e., putting one of Taylor Swift’s trademarked song lyrics on a product that is not listed in her trademark application and not protected).
With the trend to lock up property rights growing, creativity and free speech arguably suffers. This crazy desire to seize intellectual property rights and fence off any and everything in the name of merchandising and revenue generation is a new development in the world of intellectual property rights, and is not something to be taken lightly.
Intellectual Property Real Estate
Similar to domain and dot-com squatting we saw years ago, trademark registration has become a veritable land grab, with registration equaling intellectual property real estate. With this real estate, companies and celebrities seek to police anything loosely associated with their secure phrases or mark, so that no one can use them. Intellectual property law is filled with examples of companies and wealthy individuals aggressively pursuing little companies for anything that vaguely resembles the larger companies’ trademark. The danger is the toll this may take on free speech – the growing assertions of intellectual property rights creeps from property rights to the side of free speech, creating an imbalance.
Expanding Intellectual Property Rights
Over the years, intellectual property rights have expanded, especially copyright and trademark protection. Arguably, many of these expansions have not been for the benefit of the public; rather they have been for the benefit of companies, the wealthy and the famous. Consider the extension of copyright lengths that occurred in 1998. The corporation’s interests seem to have continually trumped the public’s interest with copyright protection initially being 28 years, then 56, then 75, and finally (as copyright protections were scheduled to fall into the public domain in 1998) copyright holders such as Disney, the Gershwin family trust, and others all lobbied Congress, which finally caved and extended copyright protection (and revenue) to “life plus 70 years.”
The Shifting Balance in Favor of Intellectual Property Owners
Intellectual property and freedom of speech is supposed to have a delicate balance, but this balance has begun to shift in favor of intellectual property. For example, in copyright law, a doctrine called “fair use” allows a copyrighted content to be freely used for educational, research, reporting, criticism, and commentary purposes. Because there are works that are many decades old that are a part of the fabric of history, but covered by copyright, fair use is critical. It is the key “safety valve” which prevents the blunt tool of copyright from being used to censor and stifle free speech. However, as the fair use doctrine has become more complex and extremely narrowed, universities have literally had to create departments to handle the use of copyrighted material and advise on its use. The unfortunate reality is that the fear of lawsuit looms in such an ever-present manner, that use of any copyrighted material becomes shrouded in fear and danger.
Trademark law has also expanded to the point of curtailing free speech and creativity. Consider dilution claims that only owners of “famous” marks* can make – specifically claims of tarnishment and blurring. These relatively new claims (enacted on the federal level in 1996) allow owners of “famous” marks to bring an action against any use of the mark that dilutes the distinctiveness of that mark, either by blurring (the distinctive power of the mark is weakened through identification with dissimilar goods, e.g., Nike brand cigarettes or Apple brand bicycles), or by tarnishment (casting the mark in an unflattering light, usually through association with inferior or unseemly products or services – as my former Professor Abdel-Khalik described it, “think sex, drugs, and rock ‘n roll”, e.g., the recent claim made by Toys ‘R Us against the pornographic website adultsrus.com).
What is most troubling about this expansion is that unlike a traditional trademark infringement claim, the likelihood of consumer confusion is not necessary… Yes, that’s correct. Even though one of the key purposes for trademark rights is to ensure that the public/consumers can easily and quickly identify the source of a give good or service, dilution claims do not require that the owner of a mark prove that consumers will be confused as to the source of the goods or services. Thus, large companies can make broad sweeping claims against numerous smaller companies if the smaller company’s mark is vaguely similar to the larger company’s mark. This unchecked power to step on smaller companies and individuals is very disconcerting.
Unfortunately, with the scale leaning towards those who own intellectual property, we continue to see trademark law protect brands rather than the consumer, with the consumer’s rights carrying little weight. What good is a marketplace of ideas if no one can afford to shop? (Trademark pending?)