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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.