My latest Guardian column is “Trademarks: the good, the bad and the ugly,” and it looks at why trademark, at its best, does something vital — but how trademark can be abused to steal common words from our language and turn them into a twisted kind of pseudo-property.
Trademark lawyers have convinced their clients that they must pay to send a threatening notice to everyone who uses a trademark without permission, even where there is no chance of confusion. They send letters by the lorryload to journalists, website operators, signmakers, schools, dictionary publishers – anyone who might use their marks in a way that weakens the association in the public mind. But weakening an association is not illegal, despite the expansion of doctrines such as “dilution” and “naked licensing.”
When called out on policing our language, trademark holders and their lawyers usually shrug their shoulders and say, “Nothing to do with us.
The law requires us to threaten you, or we lose our association, and thus our mark.” This is a very perverse way of understanding trademark.
The law is there to protect the public interest, and the public interest isn’t undermined by the strength or weakness of an association with a specific word or mark with a specific company. The public interest extends to preventing fraud, and trademark uses the motivation of protecting profits to incentivise firms to uphold the public interest.