Wednesday, May 28, 2008

AARP provides an example of a non-profit use of trademark


As noted in an earlier posting about MADD, advocacy organizations can have trademarks. Some insurance companies, especially United Healthcare, have been offering various kinds of retiree, Medicare supplementary and drug benefit health insurance through AARP. I found when I called the 800 number and was transferred to another number to discuss the prescription drug benefit (see also today’s entry on the retirement blog), that the recorded announcement included the fact that UHC could use AARP’s “trademark” in offering health insurance coverage, but that the policy was not written by AARP, it was written by UHC.

The reminds me of the Blue Cross and Blue Shield health insurance plans. They are supposed to be "not for profit," but as any who has ever worked for them before (I have, indirectly, twice), they are very "commercial".

AARP describes itself as “AARP is a nonprofit membership organization of persons 50 and older dedicated to addressing their needs and interests.”

AARP has a link called “Divided We Fail” for issue advocacy (the domain name is equivalent to the link), with the introductory statement “We believe that health care and financial security are the most pressing domestic issues facing our nation” and also a laudable statement that partisan gridlock needs to stop. USPTO gives this as a registered mark and gives the address of the registrant, but does not say that the registrant is affiliated with or equivalent to AARP (which it is likely to be so in practice; WHOIS for the domain name does mention AARP; I think I’ve heard Hillary Clinton refer to the phrase).

I do have some concerns about registering a catchy phrase of common English words that convey a political meaning as a “trademark” or “brand” (eventually vulnerable to "dilution"). Philosophically, it seems to me that equating a political or social concept to a “brand” could encourage superficial attitudes among voters. Perhaps libertarians (and even the candidates like Bob Barr) would agree with me. But it seems to be allowed and even encouraged.

This reminds me of Blue Cross and Blue Shield plans. Even though they are supposed to be "not for profit," they are very "commercial," as anyone who has worked for them (as I have, indirectly, at least twice) can attest.

Wednesday, May 14, 2008

A wordmark with many different USPTO registered trademarks: "Front Page"


Here’s another good example of a wordmark that can be used by different lines of business without confusion: Front Page.

The Front Page Restaurants
is a trendy franchise of brunch restaurants (a bit like TGIF) with a d├ęcor based on newspaper front pages in murals around the restaurants. There are other chains with this theme, such as the Times (on the East Bank in Minneapolis). I noticed this when I had Mother's Day brunch at a Front Page restaurant.

The other well known use of this workmark is, of course, Microsoft’s web publishing product, which it is now replacing with Expression Web.

But a quick check with uspto.gov for “Front Page” shows a large variety of registered marks in different businesses, ranging from printing to securities trading to advertising.

The concept, of course, is that a “Front Page” is the first page that a customer sees, regardless of the business, and most naturally refers to a newspaper.

USPTO allows registration of the same work mark in different businesses. However, sometimes litigation has accepted the idea that dilution may occur across lines of business, even in areas where common sense says it should not. The concept of “brand” seems to run counter to the idea that a consumer should become educated.

I recall a battle in the 1990s between amazon.com and a bookstore in Minneapolis called “Amazon.”

Saturday, May 03, 2008

Many movie and comic characters are trademarked; are they too finicky about unsolicited submissions?


Movie studios generally enforce a “third party” policy with respect to submissions, which generally means they must receive all creative ideas from agents rather than novice writers themselves. They say they must enforce this to protect themselves from accidental liability, should something developed in the normal guild channels accidentally resemble a work submitted by a newbie. I expect to cover this in more detail later on the movies blog, but there is one way in which trademark law can help reduce the risk that studios perceive, and it becomes more relevant in a world of instant publication on the Internet.

Television series names (because they have multiple episodes) and characters can be trademarked. Movie franchises (Star Wars, Indiana Jones, etc) can be trademarked. The familiar comic book characters that have generated so many films and television series generally are protected by trademark. The USPTO gives comic book characters their own class (16). Often the characters are trademarked not only for comics or media, but also for use in promoting other consumer products, like cereal (which means that separate registrations will be done in other classes). That probably means that no novice could safely publish a book (or distribute a micro-budget film) using these characters. (If I write and publish a novel about two brothers, they (along with their story setting) need to be recognizably different from Dean and Sam – likeable as they are – in “Supernatural,” and the book needs to be called something else; there are some complicated issues with legitimate parody, however.) That probably also means that an unsolicited submission for a story with these characters could not present a risk because they are already well-protected. The 2006 extension of trademark dilution to include a “prospective” provision probably strengthens the hand of studios further.

A good discussion of all this appears from Law.E.M., “Superheroes Need Protection Too,” by William E. Maguire, here. He uses a fictitious character “Prime”, but it seems to me that “prime” would make a good didactic jargon synonym for “fictional character trade dress” if the industry wanted a term for the concept. Visual depictions of a character also can get copyright protection.

Some studios (like CWTV) have message boards discussing their shows, but warn posters that the studio “owns” the creative potential of any comment made—meaning they will not compensate the poster for any “suggestions” that accidentally or perhaps intentionally get used later. That’s probably window dressing, as trademark law would protect the studios anyway from claims.

I do remember all the boards for Everwood and Smallville, where readers try to predict what will happen, and they are always wrong. I suggested that Ephram (in Everwood) play a specific piece of music, and six months later he really did. I think they read the comment. Sorry, no compensation for me. WB “owns” the comment and the artistic concept for that “character” (Ephram).

I’ll come back to this later with the topic of submission of scripts to agents.