“Just Do It”
“You Deserve a Break Today”
“What Happens Here Stays Here”
They’re called service marks and, although my patent attorney friends may disagree with me, it’s time the Patent and Trademark Office stopped issuing trademarks for them.
The Las Vegas Convention and Visitors Authority is currently embroiled in litigation with a California clothier over its use of the phrase “What Happens in Vegas Stays in Vegas!” on t-shirts and other apparel.
Santa Cruz and Huntington Beach, Calif., are battling over the exclusive trademark rights to “Surf City USA.”
You might recall that back in 1995 some basketball coach threatened litigation over the Mariners’ use of the phrase “Refuse to Lose” to commemorate their stirring pennant drive. He claimed that he had used the phrase first and had the exclusive trademark rights to it.
What a bunch of baloney. Hopefully, I won’t get sued by Oscar Meyer for using that phrase. But I don’t care. That’s how strongly I feel about the subject. I simply don’t think there are many things more ludicrous than being able to trademark a sequence of words and prevent everybody else from using it. You can’t copyright a title, for crying out loud. So, why in the world (is that trademarked?) should someone be able to get the exclusive, trademarked rights to “Have It Your Way” or “Where’s the Beef?”
I understand the concept of non-name service marks and trade dress. I really do. I worked on a trade dress infringement case as a summer intern at Karr Tuttle Campbell. Russian vodka. It was fun. But why are service marks elevated over trade dress? I say put them on the same, unregistered lower plane. If someone has made commercial use of a particular phrase and someone else mimics it for another commercial purpose that results in the sort of origin and consumer confusion that lies at the heart of trademark infringement, then let them go at it in a trade dress case. But, for heaven’s sake, don’t lock away a mere phrase where no one else has visiting rights by issuing a trademark for it.
We’re only talking about words here. Can I say “word?” Doesn’t Microsoft have the trademark on that? So what? Who cares? Big deal! Hmmm. Maybe I can get the trademark on those. n
~ Gene Barton
