Opinion: Media outrage over menopause TM misses the point

According to some of the UK media, Davina McCall is heading for world domination – and a trademark application related to the menopause is driving her quest.

Who is McCall, you may well ask? For those who don’t know, McCall is a TV presenter who is probably most famous for a long stint presenting the UK version of the reality TV show ‘Big Brother’ in the early 2000s.  

These days, while still undertaking other presenting duties, 53-year-old McCall has been trying to raise awareness of the struggles that women face when experiencing the menopause. A book about this, called ‘Menopausing’, is due to be released in May next year.

However, after it came to light this week that the presenter had sought to trademark the term at the UKIPO earlier this summer, the reaction from some corners of the media has been grimly predictable.

The application covers books and other reading material, as well as lotions, candles, media platforms, and a handful of other goods and services.

“Davina McCall is turning her menopause into a money-spinning brand,” blustered the Daily Mail with its trademark (pardon the pun) outrage. “Davina McCall wants to trademark ‘menopausing’ — who does that help?” asked journalist and author Kevin Maher in his column in The Times.  

Nothing nefarious

A few things bother me about this coverage.   

First, the tone. There is a sense within the mainstream media that the trademarking of a term is somehow a nefarious act and a way of obtaining a monopoly over a phrase to the exclusion of all others.

This is not the first time a story about a trademark application has been reported in this way and it won’t be the last.

Second is the idea that McCall is taking ownership of a biological process. She is not trademarking ‘menopause’, but ‘menopausing’ – a word she has made up and for which she is entirely within her rights to defend. Further, she is only seeking protection for certain products.

Such was the strength of the furore, McCall was forced to make a clarification on social media in which she insisted that the trademark application was only to protect her upcoming book and nothing else.

“I am not making any products, I am not starting a business, I am not making anything to try and make money out of anybody,” she said.

I should, at this stage, give the reports a little bit of credit. At least they have not confused trademarks with copyright or patents – a mistake that still creeps into mainstream media IP reporting with frightening regularity.

Damp squib

However, away from the sensationalist tone, there is a slightly more practical element to all of this.

While it is true that the application covers a range of items beyond merely books and literature, this is actually entirely normal, say sources.

Aaron Wood, attorney at Blaser Mills in the UK, says an application designating a variety of goods and services is “completely standard”.

“I’d love to say there is something hidden or that she is going to be doing something nefarious, but it’s all very normal,” he tells Managing IP, adding that the reporting is “somewhat of a damp squib”.

James Love, partner at Womble Bond Dickinson, agrees.

“A challenge anybody has when launching a new brand is what goods and services to protect. It is not untypical for someone without experience of the system to want protection for their new name on all goods and services in all countries,” he says.

Love says while this is a relatively broad filing, it is still fairly typical for an enterprise wishing to sell products in the health, home and leisure sectors.

Up in the air

In fact, just because the application is directed to additional goods and services, there is no guarantee that future products will be launched in this line.

The non-literature-related applications could be speculative and abandoned after a period of non-use. Or they could be defensive, to ensure that similar products using the ‘menopausing’ term do not spring up.

Either way, McCall does not own the rights to anything yet. Even if she did, it would not stop other applicants from using the term for unrelated goods and services. Even if they did, there’s no guarantee McCall would take a hard line against it.

However, Wood at Blaser Mills notes that McCall’s public declaration that “it’s only going to be a book” could be unhelpful to her should anyone seek to challenge or oppose the application.

“My prediction is it [the application] is covering the extra items as either a potential for growth or because they want to stop someone else nabbing the trademark for other goods – so a defensive step,” he says.

Love notes that McCall (or her attorneys) will have had to sign a declaration of intent to use.

He adds: “Remember that it is not claiming any rights in the word menopause, but only in the coined term ‘menopausing’.”

The media would do well to remember that too.

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