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Privatizing the English Language

In the heart of Northumberland is the pretty town of Alnwick. For bibliophiles, a

stop at its second-hand bookshop is a must. Barter Books is housed in the

town's old railway station and on its outside wall its owner, Stuart Manley has

hung a piece of ephemera, a World War II poster that reads “Keep Calm andCarry On.” The problem is that Mark Coop, a businessman trademarked the

phrase in 2011, seeing an opportunity to create a monopoly of souvenir mugs,

aprons and the like bearing this slogan and he even copied the poster design.

 This unremarkable English phrase has been taken out of the public realm and is

now privately owned.

If I write an article about banking, and suggest that a particular institution, which

has branches in every time zone, is a “bank that never sleeps”, I can only use

that common phrase to refer to Citibank because that phrase has been

trademarked and is now its private property. And at the school sports event, I

should forget putting up a sign that says “Just do it”, unless Nike is the sponsor.

A poet, wishing to use the phrase “between love and madness lies obsession”

may find themselves in trouble because Calvin Klein has trademarked the

expression for its line of Eau de Parfum products? And anyone thinking of writing

a memoir and wishes to recall happy times reading “Winnie the Pooh”, may be

forced to pay a license fee to Disney, which has trademarked the book’s

characters.

Perhaps the most egregious example of the takeover of the language is the

aggressive approach taken by McDonalds to stop any retailer using “Mc” in its

trading name. For example, in 1996, McDonald's threatened to take Mary Blairof Fenny Stratford in Buckinghamshire to court because she had called her

sandwich shop “McMunchies”. Ms Blair told the London Times, “This is a small

corner shop. We sell cold sandwiches, cold meats.” It is hard to believe that

anyone could confuse McMunchies, which sells neither burgers nor chips, with a

McDonalds franchise. That is, anyone but McDonalds, which issued a statement 

explaining that the prefix “Mc” was the firm's property. "If someone, either

deliberately, or unintentionally, uses our trademarks in their own food or

restaurant-related business they are effectively using something that does not

belong to them.”

In France, the modern concept of trademarks appeared in 1857. The

"Manufacture and Goods Mark Act" allowed owners to register and protect their

trademarks. This law marked the first time a trademark as was recognised as

property, with its own intrinsic value and legal rights.

Few would disagree that brands have a right to protect themselves from

counterfeiters. For example, Coca Cola should be able to stop another company

trying to pass off its fizzy drink for the real thing. But should Coca Cola be able

to trademark the “the real thing”, taking ownership of the phrase in perpetuity?

Once, trademarks were only used to protect logos and brand names. Thischanged in 1923, when Edgar Rice Burroughs registered “ Tarzan” as trademark.

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 This allowed his estate to circumvent the limited time it could legally enjoy

profits from its copyright.

 There are other examples of how trademarks have extended well beyond their

original purpose. In 1995, photographer Charles M. Gentile made a poster of the

I. M. Pei building, which houses the Rock and Roll Hall of Fame and Museum. Hewas surprised when he discovered that the museum intended to sue him for

infringing its trademark over its own image. The implications of this extension of 

trademarks are mindboggling. If artists, photographers need to pay license fees

to use trademarked images of public building, it would represent a private tax on

artistic expression.

 The next target for trademark lawyers has been the colour spectrum. In

November 2002, Mars successfully trademarked “Whiskas Purple” for its cat food

packaging. Justice Bennett, in the Australian Federal Court accepted the

argument that Mars invented the colour specifically for its cat food range.

Considering the infinite palate employed by Mother Nature, might not the good

lady find that she has inadvertently used “Whiskas Purple” on some animal or

plant, and find herself paying Mars a licence fee?

Companies may well spend millions of dollars coming up with catchy slogans,

and a small fortune promoting those slogans to consumers. That, however, does

not mean that they should be allowed to take exclusive ownership over parts of 

the language, or for that matter public images and now colours. A company can

adequately protect its brand from imitators using a distinctive name and logo.

 The two work together to provide a unique identifier. Trademarking advertising

slogans, however, is unnecessary and companies should not be able to legalizesquatter’s rights to what is, after all, public property.