If you run a business successfully, you will no doubt have looked at a breakdown of the reasons why it is successful so that it can continue to be so. In many cases, companies have looked at elements of their business, chiefly how it is carried out and how it is sold, before looking to trademark different elements so that no other business or individual can use these same elements in their own favor. In such cases, it is worth remembering to check that the thing you’re looking to trademark is:
not already trademarked by someone else or some other business
not in common general usage by other people or businesses
One example of the above is the 1998 case which saw two recording artists battling in the courtroom over the use of a certain, distinctive logo – the letter “G”. Rap artist Warren G attempted to sue country rock singer Garth Brooks over the latter’s use of the letter G in his merchandise, claiming that he had already trademarked the letter. The case ended in mutual acceptance that both could use the letter, but led to much amusement over the respective claims to ownership of a letter that forms one twenty sixth of the Roman alphabet.
Another lawsuit considered to be frivolous occurred in 2003 when the TV news station Fox News attempted to sue Al Franken in a case prompted by his book Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right. Franken’s book, a satirical parody of what he and others viewed to be the excesses of the right wing media outlets of the United States, reserved particular ire for Fox News – a station which uses the term “fair and balanced” as a network slogan. Having trademarked the phrase in 1998, Fox felt that they had a case to sue Franken for unauthorized use of their trademark. They attempted to do so, citing as further evidence the fact that Fox News anchor Bill O’Reilly was depicted on the book’s front cover.
Fox’s case hinged on attempting to prove that Franken’s choice of words in his book title, and his use of an image depicting O’Reilly, could be construed as an effort to convey to potential readers that both Fox and O’Reilly endorsed the book. They were not, it would be fair to say, successful in this attempt. The presiding judge, Denny Chin, threw out the case, calling it “wholly without merit, both factually and legally,” and onlookers in the courtroom erupted in laughter more than once as Fox News lawyers set about trying to prove that Al Franken had attempted to hoodwink potential buyers into believing his book came with the blessing of Bill O’Reilly. Judge Chin pointed out in his dismissal of Fox’s case that the phrase “Fair and Balanced” could not realistically be trademarked because the words are so commonly used in everyday society. It is therefore instructive to take from this case that if one wishes to trademark a word or a phrase, they would be unwise to do so without very good reason.
Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter.
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