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In lugnet.market.theory, Matthew Gerber writes:
> (Useful summary of trademark law and request for a halt of “ball-
> busting” excised.)
With only a few exceptions, U.S. federal trademark laws and regulations do
not control the non-commercial use of trademark (#1). To expect writers and
speakers to punctuate the mention of, or merely the "first mention of", any
trademark in the course of their conversation, speech, writings or simple
musings would be chilling to both free speech and liberty. Requiring people
to treat some words as “special” or “sacrosanct” while carrying on everyday
discourse is not the aim of trademark law. Trademark law is designed to
protect the holders of marks against wrongful commercial use. Period.
Holders of trademarks are protected primarily so that other commercial users
will not wrongfully try to use the mark to further the infringer's
commercial interests at the expense of the mark holder. Trademark law is
not intended to require that every mention of a trademark, no matter the
context, pay homage to the mark and its special status. There is no
requirement for the casual non-commercial user to treat (word) trademarks as
anything other than another word in our language.
Trademark holders are, of course, free to follow around after any one and
everyone that they wish, scolding them for their “careless” “misuse” of a
mark. Many large corporations have undertaken this task in the form of
advertisements designed to stem the use of their trademarks as generics or
descriptors, notably Xerox and Rolls Royce. Be that as it may, the casual
non-commercial user of a mark owes the mark holder no special duty as a
result of trademark law.
Asking people to put an ® (R) or a ™ (tm) after every (or even simply the
first) mention of their trademark is akin to demanding that serfs bow down
in front of their lord, requiring penitents to genuflect before taking their
pew, or NCO’s to salute officers (#2). This is fine if you have freely
sworn an oath of fealty to the local lord, willfully joined a sect that
requires such behavior, or if you voluntarily enlisted in the service.
If, however, you are merely out surfing the Internet and making mention of a
company or product, you need not designate the legal status of its name(s).
Certainly respect and common courtesy should not be discounted here. It is
polite to try to get peoples’ names correct, and also to get the names of
their businesses correctly as well.
However, Leticia Baldridge herself would be the first one to point out that
anyone going around publicly offering unsolicited advice on correcting
manners is likely not living a genteel life himself, having shown coarseness
in the correcting of others in a public setting. (ED- FWIW, I don’t consider
trying to correct points of law to be discourteous behavior. After all, IAAL. )
Those who would hold otherwise should check their premises. What is it that
they truly fear? The loss of their mark, or the loss of something that they
hold more precious than any commercial benefit that they might derive from
their trademark?
Afterwords
(BTW- Afterwords is the name of a bookstore in Washington, D.C., lest anyone
think I use the word without attribution)
Closing thought experiment:
What if bricksmith fell into general use to describe anyone who builds great
things our of our favorite bricks, akin to the way wordsmith describes an
author of great quality? Would such an action be objectionable, or more
importantly actionable? Can a person (natural or otherwise) or persons
claim ownership of a word to the exclusion of all non-attributed
use/uses/users? Jabberwocky!
__________________________
1) As I mentioned, some non-commercial use restrictions have been creeping
into the law, but nothing mentioned here so far comes at all near this
expansion of trademark holder’s rights. See,
http://www.fed-soc.org/Publications/practicegroupnewsletters/intellectualproperty/ip010203.htm
2)I note in passing my amusement that you copied Cornell's summary of
trademark law without bothering to designate that Cornell holds the
copyright in the material you copied.
http://www.law.cornell.edu/topics/comments/credits.html
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