Don't Use It, or We'll Lose It

Jacob Sullum | December 14, 2004

I thought we owned two TiVos, but I was wrong. Apparently we own two TiVo&reg Brand Digital Video Recorders. And I thought I TiVoed a Reason-sponsored panel discussion that was on C-SPAN the other day, but I guess I recorded it with my TiVo&reg Brand Digital Video Recorder.

The New York Times reports that TiVo is trying to "keep its name from going the way of Xerox and Kleenex" by sending out corrective letters about the trademark's proper use. (Among other things, it's not a verb, and it should never be pluralized.) When I worked on The Cornell Daily Sun, we used to get such warnings regarding Frisbee&reg Brand Flying Discs from WHAM-O, which likewise was worried about becoming a victim of its own success, so dominating the market that its trademark became synonymous with the product. If we dared to run a caption that said "Joe Sophomore '88 plays Frisbee with his dog, Scooter," we'd get a letter.

Which makes me wonder: If WHAM-O was monitoring Frisbee references in college papers, what do companies do about the rampant abuse of their trademarks on the Web? Is print considered more important from a trademark perspective, or is it a matter of audience size?

Comments

Warren|12.14.04 @ 10:09AM|#

Which makes me wonder ... what do companies do about the rampant abuse of their trademarks on the Web?

If you really wanted to know, you could just google it.

|12.14.04 @ 10:17AM|#

I've got a naive, stupid question - why the hell do they care? As long as competitors aren't using the name to sell their products, isn't it to the advantage of Kleenex, Xerox, Frisbee, etc. that almost all consumers use their brand name to describe all similar products? Isn't that just a ton of free name recognition? Is it because their names are being associated with inferior products (damn those inferior sandpaper kleenexes!)? Is this reasoning why I'm not in the advertising business?

|12.14.04 @ 10:23AM|#

I know where this is going.

No, Jacob, you cannot trademark the word "reason."

|12.14.04 @ 10:23AM|#

I'm with J. Shouldn't this be a good thing?

|12.14.04 @ 10:33AM|#

I suppose that we can comforted by the idea that at least TiVo� is a made up word. As such, I guess they can advise people of how to use it.

Could you imagine have that as your job? poring over every article looking for those which fail to mention your trademark correctly.

Strangely, a Frisbee� is named for the pie company whose tins were tossed back and forth. So it seems like the term should have been common pre-Wham-O

|12.14.04 @ 10:36AM|#

As long as competitors aren't using the name to sell their products, isn't it to the advantage of Kleenex, Xerox, Frisbee, etc. that almost all consumers use their brand name to describe all similar products?

Not if they call the thing a Kleenex, but spend their money on Target-branded facial tissues, or call them Xerox machines but buy them from Canon.

Jeff|12.14.04 @ 10:52AM|#

Y'know, the marketing people who get paid gobs of cash to come up with catchy brand names for new technology should really think about this stuff before it goes public. TiVo's been used as a verb for years, and this is coming to light now?
Also, has any company ever sued a marketing firm (or fired a marketing department) for coming up with a catchy, successful name that was prone to abuse? Are there old guys in dive bars who were part of the team that came up with "Kleenex" who rant about how the one of the most recognized trademarks in history landed him in the poorhouse?
All of this "do not use our name in vain" posturing is just a new way to drum up promotion.

|12.14.04 @ 10:57AM|#

Regarding the Frisbee, the pie company spelled their name Frisbie, so there's no conflict. There's an article on the origin of the Frisbee at:
http://inventors.about.com/library/weekly/aa980218.htm

Regading trademarks becoming general usage terms, a company has to show that it makes an effort to protect it's trademark if it ever wants to take another company to court for infringement. For instance, if Panasonic sells a DVR with the caption "Tivo your favorite shows!" then TiVo (the company) would have a much better chance of winning a suit against them if it shows that it has made a point of preventing any misuse at all of its trademarks.

raymond|12.14.04 @ 11:01AM|#

Has Coca Cola ever sued the Escobars of Medellin?

raymond|12.14.04 @ 11:02AM|#

Or vice versa?

|12.14.04 @ 11:21AM|#

"Trademarks are always proper adjectives," the legal pedagogy at TiVo.com instructs. They are also "always singular."

English is inflecting adjectives now? You don't see that much outside of attorney generals.

What they wanted to say, if they knew any English, was it's a proper name always used in apposition.

It's not an adjective in any case.

* My television is more TiVo than yours.
* My television is very TiVo.
* My television seems TiVo.

``*'' means it's ungrammatical.

If the legal basis of the claim depends on its being an adjective, they should lose easily. Of course the FCC thinks that fucking in fucking brilliant is an adjective, so perhaps grammatical inaccuracy doesn't count in law. You can claim anything you want, there

|12.14.04 @ 11:22AM|#

OK, Julio, you serve him with the papers, I'll wait in the car.

No, YOU bring him the papers, and I'LL wait in the car...

|12.14.04 @ 11:32AM|#

If you can't say a man is playing frisbee with his dog, then just how in the hell would you describe that activity? "A local man throws a flying disk?" Seems awkward at best.

|12.14.04 @ 11:39AM|#

What they should say is "A local man throws a frisbie" Unless he's throwing the product by Wham-o, in which case you could use "A local man throws a Frisbee(tm)". But don't use "A local man throws a Frisbie" unless you're writing about an odd case of assault involving an unfortunate with that surname.

Warren|12.14.04 @ 11:52AM|#

Ron,
The only ones worse than those who butcher the English language, are whinny schoolmarms who treat it as if it were dead.

coyote|12.14.04 @ 12:07PM|#

Formica is the classic case. Because they let it become a generic word, the FTC sought to actually cancel their trademark. This has been blocked, but never really definitively resolved. Every marketing person is hammered with this lesson - thus the annoying copyright letters.

In the case of web monitoring of trademarks, I wondered about it here, after getting what I thought was a Disney response to a web post Its not really enough to google it - too much if you are, say, a Disney. You really want to google for changes and new things, which suggests a new corporate service google could offer for brand and PR monitoring, kind of like the web version of the old clipping services.

|12.14.04 @ 12:19PM|#

If Wham-o was monitoring your college newspaper in the 80s, does that maan they had subscriptions to ALL college newspapers?

Doesn't that seem like a waste of their profits?

|12.14.04 @ 12:45PM|#

J,

An unpoliced trademark can lead to it becoming a "generic" term; "genericized" in other words. In that case, the "owner" of the trademark loses the right to its exclusive use (there are of course exceptions to this exclusivity - including use for parody purposes, etc.). One of the ways that you show a term has not become generic is vigorously enforce its usage; you take out ads, you sue people using the term commercially, etc. Anyway, clearly in a society such as ours where there are hundreds of thousands of voices as acting in the various forms of media (maybe millions with the advent of blogs) a company has to be extra-vigilant.

|12.14.04 @ 12:49PM|#

It accidentally hit my Tivo with a Frisbee, so I wiped it with a Kleenex and put a Band-Aid on it.

|12.14.04 @ 1:01PM|#

* My television is more TiVo than yours.
* My television is very TiVo.
* My television seems TiVo.

``*'' means it's ungrammatical.

Lots of adjectives would make those sentences ungrammatical: unique, existent, etc. These are certainly not apposition-only nouns.

To be honest, the distinction between appositioned nouns and adjectives always seemed artificial to me. As far as I'm concerned, if it modifies a noun, it's an adjective.

|12.14.04 @ 1:35PM|#

Are you sure, Crimethink? I don't know, I'll have to think about it while rollerblading at the park tonight.

|12.14.04 @ 1:44PM|#

Lots of adjectives don't make _all_ the sentences ungrammatical. The unique example is prescriptivist, not real. You can have more or less unique, with a clear meaning. It just upsets busybodies.

|12.14.04 @ 3:01PM|#

Someone explain to me why having your brand equated with an entire class of product is a BAD thing. Don't companies spend millions trying to accomplish exactly this?

Now they don't want me tivoing my favorite shows while I photoshop myself playing frisbee naked.

|12.14.04 @ 4:50PM|#

Trademark law gives me a headache. I need to go to the store to buy an asprin. While I'm there, my girlfriend wants me to buy here a new pair of nylons. I think we're out of cokes and corn flakes, so I'd better pick some up while I'm there.

|12.14.04 @ 5:13PM|#

Yet anoher reason (can I use that word?) to NOT buy one of those thingamajigs. I guess they would like it better if we use the names of their competitors.

|12.14.04 @ 7:32PM|#

....outside of attorney generals. - Ron Hardin

That's "attorneys general", Mr. Language Person.

http://www.cjr.org/tools/lc/attgen.asp

Kevin

|12.14.04 @ 7:53PM|#

Man, all this chatter, and no one has yet mentioned LEGO ® bricks. So remember, when you step on one in the dark, to yell, "MOTHERF- ..I just stepped on another god-damned LEGO® brick!" and not just "Lego". (Weird cool fact I just discovered: the LEGO company is the world's largest manufacturer of tires.)

|12.14.04 @ 7:57PM|#

Pavel,
The reason that you would not want your brand to become the generic term is that eventually, if you do not defend it "vigorously" enough then you will lose the term to the public sphere. So if Tivoing enter the lingua franca, then ReplayTV or your cable company would be free to use the term. You would, in essence, lose the trademark because it became generic. Ideally, for a company, they would get the brand recognition of this full penetration without losing the trademark. Tivo knows that they won't be able to change language patterns, but by sending these letters, they can prove in court that they tried to defend it and protected their trademark enough that they can sue anyone that uses it for their own profit.

|12.14.04 @ 8:12PM|#

Ron Hardin,

What about "existent"? Try parsing these sentences:

My TV is more existent than yours.
My TV is very existent.
My TV seems existent.

Also, it's arguable whether or not any of those "TiVo" sentences is ungrammatical. For instance, if we consider "TiVo" to be an adjective meaning "made by TiVo corporation," I can say that "My DVR is more TiVo than yours" and mean that mine is a TiVo and yours is not.

raymond|12.14.04 @ 11:38PM|#

It's either TiVo or it isn't.

Is the TV TiVo, btw, or is the little box TiVo? (Is there a little box?)

Or is the TV TiVoed? Ie, connected to the TiVo.

If the TiVo is a little box, does it have to have that little chip which protects Americans from seeing awful things? What's it called? Clipper chip?

How's that working for you, btw?

|12.15.04 @ 4:01AM|#

Colorless green ideas TiVo(R) furiously.

|12.15.04 @ 8:19AM|#

You don't say ``a France man'' but ``a French man.'' The adjective is not the proper name.

There are denominal adjective suffixes that would plainly work for the proper name TiVo, but they don't want them of course, eg.

-ed a TiVo'ed TV
-ful a TiVoful TV
-ish a TiVoish TV
-less a TiVoless TV
-like a TiVolike TV
-ly a TiVo'ly TV
-y a TiVo'y TV
-some a TiVosome TV
-ial a TiVoial TV
-esque a TiVoesque TV
-ic a TiVoic TV
-ous a TiVous TV
-ical a TiVoical Tv

the list of which brings out that TiVo itself needs some change to become an adjectiv

|12.15.04 @ 9:45AM|#

You don't say ``a France man'' but ``a French man.'' The adjective is not the proper name.

Not in the case of France, but that doesn't preclude all proper names from being used as adjectives. For instance, in the term "US military", the unmodified proper noun "US" serves the function an adjective, showing which military we are referring to.

Let the adjectives be free, dude, and maybe you'll free yourself as well!

|12.15.04 @ 9:47AM|#

"...serves the function of an adjective..."

The White Anglo Saxon Protesta|12.15.04 @ 10:18AM|#

When I worked in Corporate Communications for Pioneer Hi-Bred, now a DuPont company, one of the biggest departments was called Identity Preservation. Apparently, it is a full time job to legally protect trademarks, servicemarks, logos, brandnames, etc. The Pioneer logo included a red and white trapezoid with a little corn shoot coming out the top. The symbol was so well defined that any depiction of that logo had to have the proper dimensions and angles in the trapezoid to within a tenth of a degree, exactly the right Pantone color red AND white, similar paramaters for the corn shoot, the font on the brand name, etc. Anyone who violated it was immeditately sent a stern warning letter, and if it happened again - BANG, lawsuit.

I thought this was silly before I read a report on some mom-and-pop seed corn company that quadrupled their sales in a season by labelling their bags with a very similar logo, cutting the price of their inferior product by half, and opening up Pioneer to all sorts of grief - loss of regional market share, loss of revenue, loss of goodwill and reputation, etc. - all of which resulted in job losses and the need to invest in a waste-of-time PR campaign to explain what happened to customers.

Companies that actually produce valuable goods and services spend a lot of money generating goodwill and developing a brand in which people feel they can trust. Cheaters who violate that goodwill ought to be sanctioned severely. Unless these companies set up very persnickety standards for the identy and useage of their trade and service marks, when it comes to violations, they have nothing to point to and say "This guy's ripping us off."

raymond|12.15.04 @ 10:26AM|#

TiVolicious

|12.15.04 @ 11:17AM|#

Yes well if you call them adjectives, you're stuck with ``white elephant factory'' and ``white'' has to be an adverb, because it modifies the ``adjective'' elephant.

In general, you want to instead characterize words by patterns they can fall into, which is why you try test sentences to see, eg., whether they behave like adjectives, in the ways most adjectives behave - can they be predicates, can they be intensified, are they gradable (more- less-).

raymond|12.15.04 @ 11:40AM|#

you want to instead characterize words...

PLEASE don't split infinitives!

(Today I had to take the car to work, since I was elephantless.)

|12.15.04 @ 3:24PM|#

You don't say ``a France man'' but ``a French man.'' The adjective is not the proper name. - Ron Hardin

But I would say "My grandfather was a Roscommon man." We have to make allowances for idiom.

Kevin