Whether you like it or not, shopping is a national pastime. Even consumers like me, who try to keep it to a minimum, there still is no way you can avoid what I call “shop talk” or “trademark speak”. For retailers, depending on how well you executed on your marketing plan, Q4 shopping is all about whether your brand for quality gets rewarded by a sale of goods. Then, in Q1 of the new year your pricing strategy gets rewarded by a follow up sale perhaps. Either way, what the average consumers thinks of your brand [retail or otherwise] is essentially how your trademark translates into a metaphor. For example, if I say STARBUCKS®, what image comes to your mind? When I go to buy some TYLENOL® surely I do not confuse that with EXCEDRIN®? You may recall that in 1973 Paul Simon used the phrase “So Mama, don’t take my Kodachrome® away” in his song KODACHROME® (but only after some serious trademark rights negotiations with Eastman Kodak Company).
So how does trademark imagery become “trademark speak”? Simple. People like to abridge their sentences. For example, texting is part information and part Haiku. If I were to send a text that said “going to buy a pair of NIKES”, you would probably know what I am talking about. Likewise, if I texted you that I am “going to buy a pair of MICHELINS”, you would also know what I meant. You understand my text despite the fact that the products are not listed and are completely different. If so, marketeers feel the brand they created is working. Trademark attorneys, on the other hand, will fret about how their clients’ trademark is being used as a noun and not an adjective. So why the big rift between the two camps of advisors – when both have as their ultimate goal the success of the client? The answer lies in how we characterize a trademark or service mark.
Simply put, the question is whether a trademark is a proper adjective or a proper noun. If marks are considered as adjectives, as current trademark law so states, then we all know that an adjective needs to modify a noun so the noun MUST be inserted after the trademark adjective. So, to use the example above, when I was texting I should have written that I was “going to buy a pair of NIKE® sneakers, and also “going to buy a pair of MICHELIN® tires. But, in the fast paced world we live in, such usage requires more words. But many folks think that is unnecessary – everyone knows what we are talking about. The purpose of trademark law is essentially to identify the source of the goods or services. The purpose of language is to communicate with each other. Both texts above accomplish these dual goals. So if the purpose of trademark law is as a source identifier, and if the average consumer is using the marks as such in noun form, then as the famous WENDYS® advertisement stated “WHERE’S THE BEEF™”?
So can the world of trademark law co-exist with shop talk and who cares? Without getting into the complexity of trademark law nuances, and linquistical analysis of descriptive versus prescriptive language, [see “The Grammar of Trademarks” by Laura A. Heymann, 2010 for further information] a quick review of trademark history goes back to at least 3,000 B.C. when stone seals were used to indicate who made certain items. Contrast that with today, according to the Brand Names Education Foundation, the average supermarket carries thousands of separate items most of which have brand names. So if shoppers can identify the source of their purchase, and if trademark enforcers can ensure that the product is not a “knock-off”, then linguistic usage can and should live harmoniously with legal rights. This would reduce the current conundrum of overly policing commercial speech. Or to quote a famous Beatles song [ironical in that one of the more acrimonious multi-million dollar disputes in music trademark history was over the mark APPLE®] we should all just “LET IT BE”. Communication and risk management are in a WIN-WIN situation.
For more information on trademark protection, check out our free e-book on the subject. Please note that the marks above are the registered trademarks of their respective companies.