Can I Say "Freedom of Expression"?

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Lefty biweekly In These Times features in its Feb. 17 issue a set of articles on the dangers that out-of-control trademark and copyright law can pose to free expression. (Reason's Jesse Walker first discussed this at length quite a while back, in our March 2000 issue.) Writer Kembrew MacLeod in ITT discusses an amusing culture hack: he owns the federally registered trademark for the phrase "freedom of expression."

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  1. McLeod’s article is way off base. No one can own “the” trademark for any given phrase; at best one can own it for a particular channel of commerce and/or anything likely to be confused with it. Thus, while Kendrew McLeod may have the exclusive right to use the phrase “freedom of expression” in connection with the sale of certain paper and cardboard products (International Class 016), that is all he has, and to the extent that he doesn’t really use the term in commerce, he may not even have that. He certainly cannot sue the ACLU for using the phrase in a generic sense unrelated to McLeod’s (probably nonexistent) products, nor can he sue AT&T for using the same phrase in an unrelated market. If it wanted to, AT&T could register a separate trademark for the phrase “freedom of expression” tomorrow, in the appropriate class (I.C. 038). That mark may or may not ultimately be registered, but if it wasn’t, it would probably be for reasons unrelated to McLeod’s irrelevant mark.

    Last and least, he uses the abbreviation TM as though it were synonymous with ?. It’s not. Anyone can assert common law trademark rights by adding the letters “TM” to whatever name they use in commerce. Using ?, by contrast, gives the holder of a valid, federally registered trademark additional protections. For that reason, using ? next to a trademark that is not federally registered is a crime.

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