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Perhaps this morning you put on a garment with a zip or zipper, put items into a bag that closed with Velcro fasteners and put a Kleenex tissue in your pocket just in case you got a sniffle. These are examples of common trademarks the English language. The issue of trademark in language is our topic this week and next.
Mitzi Gramling, associate general counsel at American Public Media, joined us on the podcast to help us understand trademarks. "A trademark is a word, name, symbol or device used in trade with goods, to indicate the source of the goods and to distinguish them from the goods of others," she says.
What's important to remember about trademarks from a legal and writing standpoint is that they are used as adjectives, not as nouns or verbs. The typical formula is to write the trademark name followed by the item or service the trademark describes. "For example, one trademark owned by Gerber & Gerber is Onesie," Gramling explains. "It's a Onesie baby clothing. Another is a Zamboni ice-resurfacing machine or Kleenex tissue."
In some cases, trademarks used inappropriately has resulted in the legal protection being lost. "Pilates is an exercise, and actually the company that created the name Pilates lost their trademark because it went into the public domain. They didn't police it," Gramling says. "Yo-yo, yo-yo as a toy, is also a lost trademark."
Other well-known lost trademarks include zipper and escalator.
It's not uncommon for people to confuse the terms trademark and copyright. Gramling cites the U.S. Copyright Office's definition of copyright, which is a form of protection provided to authors of original works of authorship, including literary, dramatic, musical, artistic and certain other intellectual works, both published and unpublished. "A really good example of the difference between a trademark and a copyright is the title of this podcast," Gramling says. "Grammar Grater is subject to trademark. But the content of the podcast, what we're saying now, is subject to copyright."
The Associated Press Stylebook advises writers to use a generic equivalent unless the trademark name is essential to the story. For example, use cotton swab rather than Q-tip, or write bin, receptacle or skip rather than Dumpster.
Beyond clearer writing, Gramling suggests that using generic words can help writers avoid legal consequences. "Make your use of trademarks—as the AP suggests in its stylebook—as limited as possible or you run the risk of getting a cease-and-desist letter from the trademark owner," she cautions. "Ultimately, if you've used the trademark inappropriately and the trademark owner can prove that, you can end up paying the trademark owner a lot of money."
Next week, we'll continue our exploration of the use of trademarks in writing. Meanwhile, feel free to share your thoughts in the area below.
Sources: A Guide to Intellectual Property Protection, by the Minnesota Department of Trade and Economic Development and the law firm of Merchant & Gould (not available online); The Associated Press Stylebook and Briefing on Media Law 2009.
Music from this episode: "The Laws Have Changed" by The New Pornographers; "English Music" by Destroyer
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Comments: 8
It's interesting that you come down so firmly on the side of the trademark holder, usually a powerful corporation (and almost always a powerful corporation when they sue the little writer).It is not clearer to call a kleenex a facial tissue. Readers will understand either but the latter sounds clunky and does not reflect the way people really speak.
Yes, journalists have to be wary of trademark violation because of the consequences you cite, but fiction writers can do their writing a disservice by talking about facial tissue or . . . now what is the generic word for velcro? They risk calling their readers' attention to the writing instead of the story.
Linguistic processes are like forces of nature--no army of lawyers will stop people's tendency to turn trademarks into common nouns and generalize them to similar products. Writers have to reflect this reality.
Unless the the item is referred to in a negative light, I'm not sure how this hurts the trade mark owner, by the way.
Linoleum and aspirin were once trademarks, but they entered the lexicon and lost that standing. They're the lessons that Xerox and Kleenex harken to. But I don't have a lot of sympathy with their problem.
Did they lose that standing because they entered the lexicon?
Yes, as I understand it.
They must have had crappy lawyers...
How did the Champagne region in France manage to preserve legal rights to the word "champagne" when informally, everyone uses it generically?
Never mind, I'm just thinking like a stoopid forriner again...
Hi, Charles and Aniko-
Thanks for the spirited discussion. Make sure to listen to the audio, too, and watch for the Part 2 post and audio on this topic, coming Thursday, June 11.
Thanks again!