Byte Rights: Going Too Far™
Posted 08/14/09 at 09:30:52 PM by Quinn Norton
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Trademark has been a way for creators to indicate the source of their work for hundreds of years. It makes sense—one of the reasons I don’t buy that email-pitched V1agra is that I’m not sure I can trust Pf1zer. Trademark is in the same class of property rights that give us copyrights and patents.
No one else can call their drug Viagra, it’s Pfizer’s property. Recently, trademark law has been used to get domain squatters off common brand names, which I like when it really pertains to domain squatters and feel weird about when it targets the unfortunately named Viagra family’s website.
Colleen Bell is an Austin roller derby girl who skates under the name Crackerjack, a word that means expert, but is more fun to say. She’s trying to trademark her handle for inclusion in an upcoming video game featuring roller derby girls, presumably beating the crap out of each other. Fun!
Frito-Lay, owners of the Cracker Jack trademark for snack foods, caught wind of this and decided it was not so fun. They got legal, seeking to block Colleen’s registration. Spokesperson Aurora Gonzalez sees possible confusion: “It’s reasonable to imagine that a consumer would assume that the brand Cracker Jack is somehow sponsoring, affiliated with, or endorsing her if she is using the same name.” Colleen’s antipathy for Frito-Lay makes that seem unlikely.
Crackerjack has already been the name of two TV shows, an HTML editor, a Memphis band, and a sport-fishing charter in Alaska. But most importantly, crackerjack is an English word dating from the 19th century, before anyone made the tasty popcorn snack (its name came from a compliment at its World’s Fair debut).
Because the brand is so widely known, Frito-Lay doesn’t see anywhere that its trademark doesn’t apply. Gonzalez confirmed that any commercial application of the word crackerjack should be associated with Frito-Lay’s product. This is more than overreaching IP, it’s an invitation to lawsuit-by-Google by any company lawyer looking for job security, and it damages my own beloved English language by taking away new uses of words.
Frito-Lay isn’t the only company to appropriate language. Register a domain with Virgin in the name—I dare you.
Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.
Breaking News
Submitted by wut on Sun, 08/16/2009 - 3:26pm
All rap musicians that have the lyrics "yo yo" are being sued by the Yo-Yo Corp.
This is untrue of course, but this is the kind of nonsense that companies are building up to if they win enough of these lawsuits.
Submitted by Queenof1 on Sun, 08/16/2009 - 10:51am
Before reading the article, I would have thought that Colleen used crackerjack because that one of her favorite snacks, not that Crackerjack / Frito-Lay was sponsoring her. It's disgusting that these huge corporations have nothing else better to do than pick on someone smaller. Don't you think they should have generated positive media attention by offering her sponsorship instead of taking her to court? I read in another article that the team that Colleen plays for and Frito Lay are based in the same state.
Has FL sued the other things / companies using Crackerjack?
Submitted by ethanajs on Sat, 08/15/2009 - 10:08pm
to Quinn
your articles always suck please stop writing them, they are also boring. oh and your ugly too. that is all
Submitted by rocketman_2004 on Wed, 10/14/2009 - 10:55am
really?
like, seriously...
non-tech copyright stupidity and software copyright DRM stupidity are different battles in the same war, totally related...
...i like this column
Then why don't you write the
Submitted by dag1992 on Sun, 08/16/2009 - 9:59am
Then why don't you write the article? Jeez, some people lack simple respect.
Kids these days. *shakes
Submitted by possessed on Sun, 08/16/2009 - 3:45am
Kids these days. *shakes head in disgust*
And learn some proper English if you are gonna denigrate someone.
Keep up the good work Quinn.
Rollerblade and Frito Lay a MaxPC article???
Submitted by zeringue on Sun, 08/16/2009 - 6:31am
I am not sure how rollerderby and a lawsuit with Frito Lay is something a MPC reader cares about. A lawsuit with MS, google, Ubuntu or some MPC related topic perhaps. Like i have said before why are you here? The newsworthiness of the great rollerderby and crackerjack scandal is hardy worth the bits its written with.
yo yo yo?
Submitted by fourfinger on Sat, 08/15/2009 - 11:06am
let Quinn handle the commentary... (to yo, yo yo...)
We need a system in place that throws out "unwarranted" litigation before it goes to the courts...
Submitted by lostcause64 on Sat, 08/15/2009 - 6:58am
That's the problem... We have the best legal system that money can buy...
John
Have you ever wondered why intelligence can normally be found in an individual, but runs screaming in terror from a group? Though, there are exceptions...
Submitted by M0nst3rB0y on Sat, 08/15/2009 - 3:56am
Mind if I forward your idea about a game based on "roller derby girls beating the crap out of each other" to Nintendo?
Grocho Marks once got into a trademark dispute with Warner Brothers over the word "Casablanca". He threatened to counter sue over the use of the word "Borthers." http://www.riles.org/musings8.htm
Submitted by MaxFan on Fri, 08/14/2009 - 8:26pm
Frito-Lay is arguing that the Adjective crackerjack and the Proper Noun and trademark Cracker Jack are the same? Looks to me as if Cracker Jack and crackerjack are two different words. Meaning, whether Derived or Implied cannot stand as valid when debating infringement when the actual terms are different. In other words if Frito-Lay has a trademark on Cracker Jack that does not mean that they own all derivations of the name. They would need to apply for trademarks on each and every derivation. Its why V1agra from Pf1zer can exist. In addition no trademark can exist on words in general use prior to the application for trademark. Therefore any competent jurist, eg one NOT from Tyler Texas is going to rule in favor of the defendant on grounds that Frito-Lays argument is specious and provides a pathway to monopoly on the use of otherwise normally accepted english words. A scary thought indeed.
Sorry but no
Submitted by tkid124 on Thu, 09/03/2009 - 8:47am
V1agra from Pf1zer cannot exist legally. As you said, any reasonable judge, sadly that excludes one from my home state, would rule against this. Can I compete with Viagra, you bet, can I have a great marketing campaign, yes, can I try to steal their customers, yes I can and within the letter of the law. Can I try to trick their customers into buying my product thinking it is Viagra? Nope, not without breaking laws and being sued successfully.
I don’t want to buy a stick of memory only to find out it isn’t really Kingston, but it’s K1NGston, a cheap brand that puts little money into R&D because they intend to trick consumers into buying their product thinking it is a great stick of memory produced by a good company. Trademark is actually designed to protect consumers. It is not profitable to build up a brand of quality products and then have some knock off pretending to be that brand makes money off of innovation. Therefore if innovation is worth less money, companies will innovate less.
And yes some trademark lawsuits have gotten out of control.
Quote(tm) for (C) Truth
Submitted by nekollx on Thu, 09/03/2009 - 8:49am
Quote(tm) for (C) Truth (R)
especially the last line (patent pending)
------------------------------
Coming soon to Lulu.com --Tokusatsu Heroes--
Five teenagers, one alien ghost, a robot, and the fate of the world.
You are wrong about one
Submitted by Tekzel on Fri, 08/14/2009 - 9:50pm
You are wrong about one thing, "V1agra from Pf1zer" would fail miserably in court, and it should. It is obviously designed to confuse the consumer.
As for the Crackerjack thing, I agree. However, it isn't important if they would win, only if they can use the threat of court to keep someone from using it. It isn't clear that she would win if she DID go to court, but it IS clear that she would spend a lot of money either way. The judicial system in this country is structured so as to protect the big guys interest, not the little guys. It is messed up, but good luck fixing it when the big guy controls everything.
Submitted by mesiah on Fri, 08/14/2009 - 7:43pm
I remember as a kid being taught in school that companies can not copyright or trademark words or phrases that where proven to be parts of the english language before the companies use of the word. Hence why Jell-o is a trade mark but jelly is not. With every passing day court rulings over intellectual property baffle me more and more.
Submitted by nekollx on Sat, 08/15/2009 - 8:24am
yo yo yo! Those Frito-Lay Jacks are Crackers, WORD to your motha!
------------------------------
Coming soon to Lulu.com --Tokusatsu Heroes--
Five teenagers, one alien ghost, a robot, and the fate of the world.
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