Friday, December 12, 2008

OESTERHOUDT STRIKES

COMMERCE HIJACKS LANGUAGE

Trademarks are everywhere. They are so pervasive that you might not even notice them. No matter where you look, some property owner has declared to the world: “THIS IS MINE! YOU CAN’T HAVE IT!” I agree that it is important to protect inventors and artists so that they reap the rewards from their legitimate creative toils. Even I would feel aggrieved if someone waltzed along and profited from my writing. Still, when commercial barons trademark everything—not just creative work—that rationale loses force.

At the outset, let us try to understand what trademarks do. They brand an image or a phrase with ownership, just the way a cattle owner may brand a cow. Trademark attempts to affix ownership to intellectual work. That is a slightly different enterprise than blazoning tangible items or even land. It is one thing to fence off an acre in order to show ownership. It is quite another to say: “I own the phrase: ‘Just Do It®.’” After all, is it possible to truly own English phrases? Do we not all use the English language? Do we not all have a right to express our thoughts and beliefs without worrying that we are “trespassing on someone’s phrase?” To that extent, trademark wanders into difficult terrain. Language is not the same as land. While everyone wants to protect their ideas, there comes a point where the quest for “mine” becomes childish and absurd. In my view, modern trademark practice has reached that point.

Today, commercial enterprises try to trademark everything they say, not just memorable, creative things. In decades past, Coca-Cola trademarked its unique-looking logo. There was nothing wrong with that. It was unique. Arguably, it was artistic. It combined imagery with language in a special way. It deserved some protection. But today, companies trademark regular English phrases. For example, I walked into a Dunkin’ Donuts the other day and saw a big banner that said: “Tell Us What You Think™.” What is so special about that phrase? Everyone uses that sentence. The banner was not even remotely artistic. There were no drawings. There were no unique identifying characteristics. It was just a plain piece of paper with printed words on it. Any company lackey could have used those words. It did not require an artistic genius to come up with: “Tell us what you think.” Yet Dunkin’ Donuts claimed that they “owned” the sentence. What? How can a company own a banal phrase that everyone uses—and anyone could have written?

This is not the only example. Advertising abounds with phrases that companies ostensibly “own.” Pharmaceutical companies tag grand-sounding phrases to posters such as: “Together, We Can Prevail™.” Law firms claim ownership in phrases such as: “When Winning Matters™.” And of course, athletic retailers will sue anyone who uses “their” phrase: “Just Do It®.” What makes these phrases any different from those we use in everyday English? Why have commercial interests wrested these words from us?

In my satires, I often ridicule trademarked phrases because I think they represent a contemptible sense of entitlement among major commercial enterprises. Commercial enterprises feel entitled to cordon off whole sentences, hijacking our common language for their own financial gain. We all have a right to construct sentences, yet trademark presumes to isolate certain sentences from common use. Worse, it imposes ownership ideas onto something that eludes traditional property concepts. When a commercial enterprise trademarks something, it screams: “MINE!” It screams: “YOU CAN’T USE IT!” It also implies: “ONLY I CAN PLAY WITH IT, NOT YOU.” In other words, the company owns it and has a right to profit from it. These are childish exclamations. But human beings are childish. They will always war over property. Our acquisitive nature will always lead to dispute, acrimony, bitterness, resentment, inequality and mean-spirited struggle. Trademark extends these childish notions onto language. In my view, it has gone too far.

Trademark should apply only when it is necessary to protect truly creative work. There is nothing creative about tacking a banal sentence onto a product. Now, if the sentence were somehow interspersed with images or symbols, it might be worth protecting. But merely writing out an everyday English sentence should not entitle a company to say: “MINE!” Let companies invent whatever disingenuous slogans they want: “We Really Care™;” “Let’s Make a Difference™;” “Help Us Help You™;” “It’s A New Day™;” “We are United™;” “May I Help You?™; “Friendly People—Friendly Smiles™;” “We Say Thank You™;” “Come Back Again Sometime™;” “Hello, How are You Today?™;” and on and on. But do not let them take those phrases away from everyone else who speaks English.

What do I mean to say with all this? Obviously my comments will not change deeply entrenched legal traditions that favor large-scale commerce. I merely wish to show that large-scale commerce wields extraordinary influence. Not only does large-scale commerce dictate the world’s economic course, but it also extends commercial values to language. From a commercial perspective, anything can be owned. And if something can be owned, it must be protected. That is all well and good when we speak about land and tangible goods. But when commercial notions begin encroaching on everyday language, what is left for the rest of us? How long will it take for commerce to own every sentence in the English language?

There is something insidious about the idea that language can be owned. Ownership implies exclusion. From an owner’s perspective, using something is just as important as preventing someone else from using it. That makes sense when we speak about personal property and land. But when we extend that concept to language, we enter difficult intellectual ground. After all, language translates human thought and belief into a form that others can understand. If we do not have free access to language, we do not have the means necessary to fully convey our thoughts and beliefs. If someone owns land, that does not pose a barrier to my own intellectual expression. Yet if someone owns a phrase, he prevents me from using that phrase to express my thoughts. That is a real encroachment. By limiting access to language, commerce limits access to thought and communication. And for what reason?: To make as much money as possible. In other words, commerce denies language to all for individual gain. That is presumptuousness at its worst.

This is what happens when we let childish ownership impulses run amok. Soon enough, you will turn to your friend and say: “Let’s go to dinner.” But you will have violated T.G.I. Friday’s latest trademark: “Let’s Go to Dinner ™.” Sorry—they own that phrase. You can’t use it anymore unless you pay them for the privilege. Please reorganize your thoughts to respect T.G.I. Friday’s property interest. After all, you wouldn’t steal a car, would you? So you wouldn’t steal a phrase, either, right?

1 comment:

SteveW said...

I think you have some misunderstandings about trademark law. The "TM" is merely their claim to a trademark, so in no circumstance is that a statement of the law. No decisions are needed for them to place that mark, but it may be completely invalid.

The slogan marks like "just do it" are much more dodgy and controversial than regular marks. Trademarks identify a source of goods, so if you use something in a way that is clearly not identifying a source of goods, you won't have a problem with a slogan mark. Further, the slogan mark needs secondary meaning to the point where anyone would readily identify the source of goods by hearing the slogan. However, slogans are in practice very problematic in my opinion. When Nike puts "just do it" on a shirt, do they really mean "Nike" - I don't think so. They really want to attribute characteristics to the Nike label in a way that no competitors can. Also, something simple like "just do it" is troublesome because that might be a good motivational phrase - but you could probably forget selling a T-shirt with just that phrase on it. The fortunate thing is that slogans are highly disfavored even though a few examples exist.

There is no "creative content" aspect of trademark law, that is for copyright law. And copyright law cannot impose requirements on people that create their own works, even if those works prove to be identical (although proving independent source can be a problem). Therefore, in theory, there is no area of IP law that blocks someone from creatively making their own works of any kind, with the exception of derivative works (like trying to sell your own creatively made "superman" story).

There is a whole area of patent law analogous to this, where some people think that obvious inventions are getting patents these days.

On the whole - while appreciating your concerns - I think IP law is not nearly as onerous as you imagine. However, to some extent most people don't understand what IP law really is, and one of those hardball letters from a big law firm can scare someone even if the underlying issue is not legitimate. To that extent, a trademark - even an unofficial TM version - may have artificial power beyond that given by the law because it is afforded more respect than it is due.