When the content is the trademark

At Exploring the Outer Limits of Trademark Law, the panelists wondered about the outer limits and boundaries of trademark rights when it comes to nontraditional marks. Unlike traditional trademarks, so-called content marks like Keep Calm and Carry On say nothing about the source, origin or quality of their producers, said Christine Haight Farley, a law professor of American University Washington College of Law.

“Is trademark law a good fit in cases where the parties are trying to protect content?” she said. “The objective of trademark law is not to encourage innovation or creativity, but they’re extending to creative and innovative uses.”

Such questions often arise when phrases themselves function as the content of the merchandise. There are other examples: “Linsanity,” which found itself in the public lexicon after Jeremy Lin of the New York Knicks basketball team led the team to a winning streak in February, and “Winning,” which was popularized by the actor Charlie Sheen, who tweeted the word during his notorious breakdown.

With the poster’s roots in the Second World War, when the British government commissioned the propaganda poster in case of invasion, it’s not quite clear who has the exclusive right to exploit the content. Is it the bookstore owner? Is it the one who merchandized the mark and created demand?

As courts have yet to find a uniform answer to these questions, an attendee asked whether trademark owners should be concerned with the “lack of rigor” and the great amount of subjectivity judges are using. Haight noted stakeholders should be concerned. “I’ve heard the criticism leveled many times that copying an unprotected idea or design used to be called competition,” she said. “Now it’s called trademark infringement.”