Wednesday, April 22, 2009
Can I Say "Hullabalooza?"
So, I'm in Moscow, hoping that I'll get over this stomach bug in time to give a series of talks about church/state matters around town on Friday. It should be interesting, and if something comes up that seems worth sharing here, I certainly will. My current concern, however, is this. Since my book is called "Holy Hullabaloos," the temptation to say the word "hullabalooza" like a million times a day is quite strong. For all those IP people out there, can I do this, or does Perry Ferrell or whoever own some sort of IP right--copyright? trademark? patent? I really don't know anything at all about IP--that would stop me? I assume that I can whisper the word "hullabalooza" to my wife in the confines of our own bedroom, of course, but what can I do beyond that? Can I make a t-shirt that says "hullabalooza"? Use it in a marketing campaign? Would it change things if I added an "o" so it was "hullabaloooza"? Or more "o"s: "hulabaloooooooooooooooooza"? What if I instead went for the darker, more conflicted, "hullabaloser"?
In any event, if anyone's interested in reading the starred review Publisher's Weekly gave HH, you can do so here.
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First off, props for having the self-confidence and humility to be a lawprof who can also admit a lack of knowledge. Let me try and fill you in just a little.
There is no way that Perry Ferrell could have a patent on a word. Patents are for inventions, devices, processes and the like. So, lets throw patent law out the window (and a lucky thing, because I have very limited knowledge in the patent arena).
There is also no way that he could have a copyright on a single word. I suppose that there might be some highly theoretical circumstance when a single word could be subject to copyright -- but I doubt that such a theory would ever work in the real world. Copyright protects expression of ideas. Photos, vessel hulls, even haiku. But a single word? No.
Trademark -- maybe. Trademarks are not word patents -- nor are they property rights in gross. If someone has a trademark, that doesn't mean that they "own," the word. They simply have an exclusive right to use that word to designate the source or origin of goods or services.
So, I don;t know what the connection between Perry Ferrell and this word might be, but lets just presume he used it to promote a series of concerts. That would give him some common law trademark rights (unless he registered the TM, in which case he has registered rights too) to HULLABALOOZA in that class of services PLUS a right to exclude you from services or goods within the natural zone of commercial expansion. So, you couldn't sell T-shirts with that on it.
But, you couldn't circumvent the TM rights by adding an "o" or any other little trick. Because, the sine qua non of trademark law is "likelihood of confusion." Will the consumer be confused as to the source or origin of goods or services? So, you couldn't sell Vereizin Cell Phones, and you couldn't launch Jet Blew airlines.
Of course you can say "hullabalooza" any time you want.
I know this is a very brief intro to TM law -- but any more questions, feel free to send me an email.
Posted by: Marc J. Randazza | Apr 22, 2009 3:18:55 PM
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