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Tuesday, June 29, 2010

Please Help, if You Can

I'm reading Larry Lessig's new book Remix. He discusses the differences between commercial economies and sharing economies. He explains that friends do favors for one another in a sharing economy, and corporations and customers use cash as the medium of exchange in a commercial economy. He points out that if a friend missed lunch with you, it would be very odd for that friend to offer $50 to make it up to you. Okay, I buy that. But then he says this:

[I]t would be very odd if ... McDonald's asked you to "help out" by promising to buy hamburgers at least once a month .... "helping out" is not just rare in a commercial economy. It is downright weird.

Well, then, what are we to make of this ad in the current issue of the ABA Journal:


It reads:

If a trademark is misused it could come undone. If you didn't know zipper was a trademark, don't worry, it's not. But it used to be. It was lost because people misused the name. And the same could happen to ours, Xerox. Please help us ensure it doesn't. Use Xerox only as an adjective to identify out products and services, such as Xerox copiers, not a verb, "to Xerox," or a noun, "Xeroxes." Something in mind that will help us keep it together.

Dude, I'm sorry, but what the #@!& do I care if Xerox loses its trademark registration to "xerox"? Wow. I've got other stuff to care about. Like the lives of individual mosquitoes.

I only wish Lessig were right.

Now before you send me e-mail or respond to this post explaining to me why companies with borderline generic (or completely generic) trademarks engage in educative advertising campaigns, please stop. I know. (See Du Pont v. Yoshida, 393 F. Supp. 502, 527-28 (E.D.N.Y. 1975) (dubiously holding that "Teflon" was saved from genericide, in part, by Du Pont's diligent educational campaign).) Look, it is one thing to tell people that this way or that way is the right way or wrong way to use a word. But it is quite another thing to attempt to appeal to people's sense of right and wrong and ask them to altruistically "please help" a publicly traded corporation in its self-serving pursuit. 

Honestly, speaking, it's unbelievable. What a bunch of weasels. I'm going to go downstairs and xerox something on the Canon photocopier right now just to do it.

Posted by Eric E. Johnson on June 29, 2010 at 07:45 PM in Intellectual Property | Permalink


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I enjoyed this. I would read again.

Posted by: anon | Jun 30, 2010 5:49:33 PM

This text was written by lawyers for lawyers, but a law professor thinks it's funny or illuminating to read it literally, as if he has never seen a piece of legal writing before.

BL1Y: law schools aren't for-profits. If they charged you enough tuition to pay their expenses in full, they would not have been asking alums for donations.

Posted by: anon | Jun 30, 2010 4:42:37 PM

Actually, compared to the scorched earth C&D letters that dominate the TM landscape, this sort of thing is downright pleasant, isn't it? It might not garner much popular sympathy, but, as I tell my trademark students, if you can't do anything effective via legal aggression to prevent genericide, you might as well beg people pretty please not to destroy your mark.

Posted by: greglas | Jun 30, 2010 3:50:24 PM

And yet, law schools routinely call up their alumns asking for help (in the form of donations), as if the $130,000 in tuition wasn't enough.

The only other business I can think of that calls up its customers after the fact to ask for more money is the Michael Scott Paper Company.

Posted by: BL1Y | Jun 30, 2010 8:03:25 AM

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