Monday, October 06, 2014

Who Owns How?

The New York Times brings us a story from one of the coolest (and often misunderstood) legal areas: trademark. The mark in question is HOW. Those unfamiliar with intellectual property shake their fists and protest, "How can you trademark the word "how?" That's just silly!" (Incidentally, this is the same group of folks up in arms about the makers of Candy Crush Saga trademarking CANDY.)

But trademark attorneys (and any ol' law student who has taken intellectual property) know the reality of trademark: the trademark owner can protect the mark in association with the goods or services. It's not the mark on its own that is the property right. The Candy Crush Saga owners are not declaring that for all time no one can say or use the word candy. Instead, they've filed for the right to exclude others from using the word CANDY in conjunction with other game apps. You know, so other people can't think "Hey, this candy crush thing is popular; why don't I just copy it, name my thing something similar, and confuse people into downloading my app too/instead?"

At any rate, the mark HOW is in dispute for yogurt (Chobani) and Dov Seidman, a man "in the business of helping companies create more ethical cultures." And his business model is captured by the word "how." Curiously, Mr. Seidman has a law degree. The article is interesting: it centers on the respective market power each party has, though it does touch on whether one can trademark a word separate and apart from its goods or services (or as the article suggests "a particular connotation of a word in a specific context").

For more on trademark law, we have a large collection of books, treatises, and journals on the subject.