Dig the drum beat start to this classic REM song … Orange Crush! Nothing like a little rock to get in the mood to talk trademarks! The text on YouTube link to song states “Orange” is a reference to Agent Orange as used in Viet Nam. Singleguy at Song Meanings apparently disputes this and claims the song is about he and his brother’s decision to stop for an Orange Crush that saved their spines! Good luck with that SingleGuy!
R.E.M. became famous in the 1980’s when the author was in high school / college. Despite their home of Athens, Georgia (great college town) being less than an hour away from my alma mater Clemson University, I never saw R.E.M. perform live (that I can remember!). We did, however, listen to their unique / ahead of its time brand of music for years and years as Clemson bands, including personal favorite The Next Move (eventually Cravin’ Melon) covered R.E.M. songs in the 1980’s, including rockers like Radio Free Europe, The One I Love, and soulful ballad Everybody Hurts. Probably more R.E.M. songs could have been covered, but for lead singer Michael Stipe’s unique “trademark” voice that could get us back to Publicity Rights, but we will stay focused, at least for a few moments. See also @dariusrucker another southern “trademark” voice and just won another deserved Grammy for “Wagon Wheel.”
OK, let’s move on to learn talk trademarks in our own unique trademarked manner (i.e., with music, always with music).
This blog purports to brand itself as covering all types of Intellectual Property (with music and at least one fake / surprise link), and whatever else “we” hope will educate and entertain you. The music part is what really makes this fun and this post is the author’s favorite thus far, so please enjoy, share, follow and hopefully be entertained, think (as much as you care to) and learn.
Today the topic is trademarks and the primary subject matter is one of R.E.M.’s timeless hits, Orange Crush. Having banged a few notions around between the ears, it seems we might further controvert these topics with, don’t say it, a debate! Yes, so here goes the topic … “which is more important / impactful to our everyday lives: (a) patents, or (b) trademarks?”
Back to some thought provoking good music, southern music … Cravin’ Melon’s top hit was “Sweet Tea.” Sweet Tea is a southern trademark, and the YouTube link to that song includes pictures of many other southern trademarks, such as the Myrtle Beach Pavillion where many a young boy or girl got their first kiss / stranger kiss with a hottie from from another town.
Since we have posited the patent v. trademark debate question with an abundance of hedging opportunities, let’s first take a look at how trademarks impact our lives, and if we still have energy after a 4 AM duck hunt this AM, we may or may not even discuss patents. In the title to this post, we have quoted the opening lines from one of R.E.M.’s countless hits. It is very likely, at least 10-1 in Vegas, that these words / lyrics caught your attention and threw you back to ©irca 1988, even though as my dear Mother would say “you don’t know me from Adam’s house cat.” You are now wondering just what the hell you have gotten yourself into in reading this blog!
So let’s take a look at the items and the brands associated with the items that the author has used in the last 24 hours, along with the Orange Crush drink that babygirl left on the counter.
Trademarks can manifest in many different ways. For example, the hunters and gun folks out there will notice the “trademarked” Benelli QuadraFit TM Recoil Absorbing Stock, as shown by the black arrows in the camouflage gun stock. Note Benelli uses only the “TM” designation in their web and print materials, indicating a claim of trademark rights, but not yet a federally registered mark at the USPTO, likely because they have patent protection for this popular shoulder-saving technology. A second example of trademark manifestation (short of the registered words themselves) is color, for example, by the “orange” in each of the Orange Crush soda and the Plano 1312 Dry Storage Emergency Marine Box, Orange.
The Trademark Blog also covers “orange” as a color indicator of brand with respect to scissors. What brand did you think of for “orange handled scissors?” Color can be an example of what is known in trademark world as “secondary meaning.” Beck & Tyvser and BitLaw provide a good explanation of secondary meaning.
Of the remaining items pictured: Merrell® shoes, Under Armour® hat, Timex® watch, Stanley® tape measure, Black & Decker® spot light, Patagonia® fleece (14 years old), Drake® hat, Carhartt® pants, Moultrie® trail camera, only the Schumacher® battery charger was a brand with a “stylized” federal registration that I did not immediately recognize. This is likely because I hope to only purchase one of these in my lifetime – an unrealistic expectation for someone with three sons! The trademark(s) that led me to this so far highly reliable and useful Schumacher battery charger were likely West Marine or Mid-Carolina Marine, where it would have been purchased. I would go so far as to suggest, every purchase I make is based in large part on value associated with a trademark or trade name, whereas not every thing involves patents, so to remain faithful to the issues raised, we will declare trademarks the winner!
Trademarks versus Patents may have been raised here for the first time! Doubtful as Out of the Rough has touched on this issue in a video. Trademarks also “win” because their use generally avoids such controversies as patent trolls that, arguably, keep technology on the sidelines, as reported on by Phill Mann. We can also give nod to trademarks because such rights are only exclusive within a given class of products or services. For example, gun manufacturer Remington makes REM® Oil for cleaning guns and gun parts, and has a federal registration for same, whereas the iconic rock band featured here R.E.M. also has federally registered trademark rights in their name for sale of t-shirts and posters, as well as “entertainment services.”
The point of the question / debate is to provide a framework from which to explore the value of trademarks and patents because we Americans love competition. If you have an argument for patents, let’s hear it.
I suspect we all overlook the impact / value of trademarks and the value of brands in our consumer / professional lives? Consider this, when was last time you ate lunch on a business / personal trip in an unknown town at a place that had not been highly recommended to you or was not a well known brand? Generally we don’t do this unless you like taking great risk (food poisoning – once burned twice shy) without any promise of a known reward. So where do you eat? You probably chose a restaurant that has a federally registered trademark in the name, such as Chick-fil-A, Panda Express (on west coast) or if you have a little more time, maybe a sit-down restaurant like Longhorns.
One more way to have fun “objectifying” value of trademarks (versus patents) and enjoy music at the same time is to listen for trademarks in songs. Consider country great Alan Jackson’s reference to a “75 Johnson with electric choke” in When Daddy Let Me Drive. This one song also references a “1/2 ton short-bed Ford,” and let’s not forget one of the great ironies of trademarks Jeep® / jeep, which became so iconic / ironic that, like Kleenex and Coke, it became generic via what @mschwimmer calls “genericide” and is now mostly in the public domain.
Reflecting on value of trademarks has led me to be even more grateful for value of my favorite brands and ability to make financial decisions on use of limited resources. Babygirl is spending the Saturday night out, oldest son is out at a party, so twins, lovely wife and I are headed to neighborhood favorite, Henry’s Restaurant and Bar on Devine Street.
Stay Grateful for Trademarks My Friends!
[end of post – value added below]
btw, Twitter “selected” me today for a survey today (and I feel special). The survey included 3 brief questions about the “Most a Interesting Man in the World,” and basically inquired did I associate the commercials with Dos Equis beer? I suspect my answers advised I am more impressed with his quotes, such as “He once parallel parked a train,” than any urge to buy Dos Equis instead of Corona!
– Interested in Searching Trademarks – www.uspto.gov click on / hold cursor over link to “TRADEMARKS” and select “Trademark Search” where you will probably want to start with the “Basic Word Mark Search (New User)” option.
– @mschwimmer – The Trademark Blog
– Phil Mann IP Litigation Blog
– @BeckTyvser – Minneapolis IP Law Firm
Legal Stuff: LIGHT
Legal Links: LIGHT
Technical Stuff: LIGHT
Surprises: LIGHT **
Length: TOO DAMNED LONG 😉
Embedded Links: A LOT 😉
** SC IP Litigation Blog rule for surprises / hidden links (that arguably 😉 do not belong), mail a handwritten letter to Wes Few, P.O. Box 11546, Columbia, SC 29211 identifying the “random” link and you will receive a handwritten response with a prize. Submissions must identify sender by name and include what you do … job, hobbies, etc. E.g., Head Bottle Washer at Balsamic Solutions (Robert Ginsberg). Rights reserved to award more than one winner, but not required. Value from $10.00 up to $100.00. Must be over 18 to participate.
Coming Soon: Montgomery Ward Sea King and the two stroke engine – education! What every boy ( and girl ) should know about motors – P.S. it is believed this classic engine marketed via catalogue was made by Johnson, so licensing may come into play. Stay Tuned.