Some years ago, right around this time of year, a geek site, as an April Fools prank, launched a new product — unicorn meat – which it called “the new white meat,” and lawyers for the National Pork Board issue a cease-and-desist order, because they’ve gone to great lengths to copyright “the other white meat” as a synonym for “pork,” and the new product might cause consumer confusion (or “trademark dilution,” as they sometimes call it).
https://bits.blogs.nytimes.com/2010/06/22/unicorns-theyre-not-the-other-white-meat/
I’m not going to tell those lawyers to lighten up – they get paid big bucks to defend their trademark vigorously, by which I mean they make sure it is associated with their product and no other.
Sometimes even parts of words turn out to be protectable, as with the Mc- of McDonald’s,[1] which the company successfully sued to protect, even with other roots, e.g., McJobs, McMansions (the Mc- suggests something monotonously standardized and/or low-priced, but McDonald’s apparently wasn’t bothered by the negative connotations).
Litmus test for protectability
The litmus test is: does the word already exist in the language? Nobody would try to copyright pants as a brand name for trousers. I was once asked to opine on junkyard/junk art. The terms turned up in dictionaries and all over the Internet, and I had to conclude that they’re already a words, thus not brandable or protectable.
Last year, I was involved in a different kind of copyright issue. An American firm, for some years the marketer of a well-known branded product in the US, was sued by the people who for years had been selling it in another English-speaking country under the generic name by which it had been known long enough to appear in a dictionary from that country.
US copyright law regards such a word as “foreign,” even if it’s in common usage as a generic in another English-speaking country. However, even though there were few if any mentions in dictionaries and databases, I was able to find it in ads, catalogs, and other printed materials in the US. Not many, but enough to establish its status as a generic word in American English. The American firm was trying to brand a generic word, and that’s a no-no.
How about Reebok? Yes, it already exists, but not as a name for a shoe; rather, the product name cleverly suggests one of the qualities that the shoe presumably imparts to its wearer, i.e., the swiftness of a reebok. So it’s protectable. The same applies to Dawn, Joy, and other household products, which turn generic terms into cheerful, “suggestive” brand names that hopefully distract from the drudgery of housework.
Kinds of trademarks
As Ronald Butters notes in “Trademarks: Language That One Owns,”[2]
“Whether a trademark is deemed weak or strong depends on where it is deemed to fall along a continuum of categories, (1) generic, (2) descriptive, (3) suggestive, (4) fanciful, and (5) arbitrary, where (1) is the weakest, and (4) and (5) [the arbitrary ones like Apple, or the fanciful ones like Kodak] are the strongest [i.e., easiest to defend against infringement].”
Now back to the Pork Board lawyers. Their complaint is vacuous because no consumer confusion is possible; unicorn meat is not an actual product.
While white meat is not protectable, it is true that “the other white meat”® may indirectly imply the copyrighting of the phrase the ADJ white meat (because the pork folks came up with the novel concept that there is more than one kind of white meat), but if so, the phrase is in this case merely a reference point for a parody (remember, unicorn meat doesn’t exist). Matters might be different if kangaroo or other real meat were involved.
Parody is generally not regarded as a violation of copyright, because
(1) the reference point is known (it must be, if the parody is to be successful),
(2) there is no “consumer confusion,”
and – very importantly –
(3) there is no obvious attempt to cash in on the familiarity of the original by dishonestly presenting the parody AS the original.
Still, you have to give the Pork Board lawyers credit. They’re well-paid for this kind of hyper-vigilance.
Excess of success
Butters regards the fanciful marks as the strongest, because the connection between product and name is easiest to establish: there is no pre-existing word, so there can be no confusion between the branded product and the rest. But some fanciful names suffer from an excess of success.
As we know, some trademarks come to refer to all members of a class, as with Kleenex, trampoline (generically, a “rebound tumbling apparatus”), aspirin (acetylsalicylic acid), Xerox (photocopier), Jell-O (gelatin dessert), Scotch Tape (cellophane tape). For some reason, Kodak and EverReady, leading brands of long standing, never became generic.
Here’s an example I saw live, but I’ll use the Wikipedia version:
An episode of The Simpsons (“The Otto Show“) satirizes the genericized trademark issue when Bart Simpson finds school bus driver Otto homeless:
Bart: Otto-Man? You’re living in a dumpster?
Otto: Ho, man, I wish. Dumpster-brand trash bins are top-of-the-line. This is just a Trash-Co waste disposal unit.
The “Dumpster” name dates back to the 1930s, but there are numerous generic terms, including mobile waste disposal unit.
The fate of google
Similarly, Google started out as the name for one of many search engines. It could have been a variation of googol, ‘a large number equivalent to 1 followed by a hundred zeroes.’ Back in the day, I once tried to find it by searching googol – and found a site that directed me to the search engine. Apparently, a lot of people made the same mistake.
Nobody would do that today. As Google established market dominance, its name got generalized as a verb that means, in daily conversation, ‘procure information via a search engine, whichever one uses, possibly (but not necessarily Google).’ According to the definition at dictionary.com –
“search for information about (someone or something) on the Internet using the search engine Google. ‘I recently googled my 7th grade teacher and found his current email address.’”
— the verb google implies the brand name.
But recently I read, in Stephen King’s novel Doctor Sleep, this sentence:
Dan typed in the four-letter password, launched Firefox, and googled the Bluebell Campground. (p. 532, paperback edition)
There it is, conclusive proof: when another search engine is mentioned in the same sentence, google has genericized to mean simply ‘conduct a computer search.’ You can’t call another search engine “google,” but google (unless context indicates something else) now clearly can refer to ‘any search engine.’
This is the kind of change that lexicographers notice, and once they see it, they start looking for and collecting more documentation. To establish how far genericization has gone, I would search a database to see if google occurs in close proximity to the name of another search engine, as in the above example. Manual inspection would be necessary to make sure each generic use is genuine.
As if we needed it, that’s one more sign that Google is too successful.
[1] See note 2.
[2] The Routledge Handbook of Forensic Linguistics (NY; Routledge), 2010.