Trademarking the English language

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A U.K. company has just trademarked the word should’ve. And just for safety, in case its competitors can’t spell, it threw in shouldve, without the apostrophe.

It’s ridiculous, but lots of odd stuff gets trademarked. A while ago, Val at Quiet Season  mentioned that the Royal Mail has trademarked the shade of red it uses on its trucks and on mailboxes. Okay, it calls them post boxes, and since it owns them I suppose it gets to decide what they’re called. Maybe it should trademark post box and see if that doesn’t catch the attention of stubborn Americans who continue to mail their letters instead of posting them.

Irrelevant photo: Last sighting of my petunias before the slugs go 'em.

Irrelevant photo: Last sighting of my petunias before the slugs destroyed ’em.

Sadly, trademarking the color doesn’t mean it can then sue anyone who uses that shade of red to knit a hat or a pair of socks. Ditto with a word. The Should’ve Corporation can’t sue us for saying “should’ve.” (No, Should’ve Corporation isn’t its name but I’m not in the mood to give it the tiny bit of extra publicity I have at my disposal.)

Why do I say “sadly” when I’m talking about them not being able to sue people? Because I do so love it when businesses and governments and all those other fine folks with power at their disposal overreach. Britain’s courts are already in a quiet and unpublicized meltdown because the government slashed access to legal aid. That’s meant that people who can’t afford lawyers but who are now ineligible for legal aid are having to represent themselves, and predictably enough a lot of them are making a time-wasting mess of it, and cases are backing up. I know that’s not funny, it’s tragic, but it also is bitterly funny. All we need to do is pour everyone saying “should’ve” or wearing the wrong shade of red into the courts on top of that to make a real mess.

But no, that’s not what trademarking is about. It means that if you go into competition with the trademark owner, you can’t use the trademarked whatever. If you compete with the Royal Mail, you can’t use their color. If you’re in the apple pie business, though, you can use any color you like, although you might want to be careful of the word apple because some corporation or other (its name has slipped my mind) owns that and may give you grief about it. Because even if you’re not really in competition, you won’t find clear lines here and it all gets silly very quickly. Sky TV trademarked the word sky and then sued Skype—even though they’re not in the same business—because it’s logo looks like a cloud. Or so the article I linked to above says. To me, it looks like a blue blob. But as a court explained, “clouds are to be found ‘in the sky.’ “

I can’t argue with that. I can’t understand its relevance, but it’s true beyond the reach of logic, and maybe what I just looked at is the new sky-free logo.

Sky also sued the makers of the video game No Man’s Sky, although they too seem to be in another kind of business. Even as I type, some court may be weighing the question of whether the sky is to be found in the sky.

To date, the entire language is still available for noncommercial use, but keep your eye on this space. I’ll let you know if that changes.

63 thoughts on “Trademarking the English language”

  4. I worked for a little while with a company that did some trademark work in the US. The trademarks granted were very specific to what area you were going to use them in. So if you were trademarking, say, the name of a restaurant, you would be granted the protection only for the restaurant class, but not for any other stuff. If you wanted protection for the restaurant name on a T-shirt, you had to make sure to also apply for that class too. And you couldn’t trademark just a descriptive name, either, but made-up words were easy to get protection on. I think that’s why so many businesses have gone over to strange-sounding names, or misspellings in their names (which explains “Froot Loops,” “Kool-aid” and “Chick-Fil-A”). And even if you couldn’t get a particular word, you might be able to get protection for its use in a particular color and type font. And a phrase is easier to register than just a single word.

    The strangest example I know of is when a company trademarks a color. Owens Corning trademarked a particular shade of pink, for fiberglass insulation. I think UPS has trademarked “brown”.

    I don’t know anything about the British versions of these rules, though.

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    • Interesting. A small women’s bookstore in Minneapolis–Amazon Books–sued Amazon the giant and won, sort of. Amazon didn’t change its name, but it did pay the bookstore to change its. But trademarking the color brown? That strikes me as pretty nutty.

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  5. It wouldn’t surprise me if right now someone in the UK’s current Conservative government is working out some way to privatise British English and make some money out of it.

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  6. People will try to patent/trademark/design register almost anything it they think they can get away with it. In 1960, the French artist Yves Klein developed an intense blue colour which he called International Klein Blue (IKB) and he registered the formula for it in France. So maybe there’s some precedent for the Royal Mail registering the red of its post boxes, now it’s a privatised company. I wonder if the Royal Mail will also try to register the gold colour they painted some post boxes in during the 2012 Olympics – boxes in the home towns’ of those Team GB athletes who won gold medals.

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    • In the abstract, perhaps, but then there are the stories of huge corporations taking small ones to court over absurd overlaps–the use of the word sky, is an example. And small businesses often have to back down because they can’t afford to fight the case, even if it’s absurd.

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  8. All is not lost–yet. Tracing back through the articles: “accepting” the application doesn’t mean approving the application–it means that they didn’t throw it out. You can apply to protect lots of things as a trademark–that doesn’t mean that the requested status as mark will be accepted. (Yes, I meant to say “mark,” not “trademark.”)

    Excellent book on the subject: “Linguistic battles in trademark disputes,” by Roger Shuy. https://smile.amazon.com/Linguistic-Battles-Trademark-Disputes-Shuy/dp/0333997581/ref=sr_1_1?s=books&ie=UTF8&qid=1472248085&sr=1-1&keywords=roger+shuy+trademark

    …and, yes, I am geeky enough to have enjoyed a book titled “Linguistic battles in trademark disputes.” :-)

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  10. It’s truly sad. During the Olympics, if you weren’t one of the mega-money sponsors, you couldn’t say “Olympics” “Olympians” “Olympic athletes or games” You couldn’t mention, tweet, post on Facebook those words or contestant names – and you couldn’t say “summer” – I had this written as part of an upcoming post. You can consider this a preview. Even though we’re in the same line of work, you can say any of those words. And the Royal Post folks have nothing to worry about. We have mail and mailboxes are blue.

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  12. To my mind, the worst example of corporate monolopising of common resources in order to make money, have been the attempts since the 1990s to patent parts of the human genome. A gross distortion of what patents are meant for if ever there was one. The sad thing about it is that it was a scientist, Craig Venter, who first seriously attempted to do this. Other members of the human genome research community, particularly those in the UK, raced Venter’s commercial research outfit to discover and publish huge amounts of the human gene sequence, so they would be in the public domain before Venter and his crew could gain a monopoly by attempting to claim Intellectual Property Rights on them. By all accounts it was touch and go though.

    According to the US web site https://www.genome.gov/19016590/intellectual-property/: “In a landmark decision in June 2013, the Supreme Court determined that DNA in its natural form cannot be patented.” In the UK and Europe the situation seems to be somewhat murkier. The UK Institute of Cancer research published a position statement on this in which they said “isolated DNA should not be classed as an invention and therefore should not be eligible for patenting.” But throughout the world,including the UK, lots of biomedical corporations are busy attempting to patent bits of the human genome through various technical loopholes in the patenting laws of different countries. I think it’s a scandal that could have serious repercussions for medical research worldwide.

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  14. I found out recently someone in the USA trademarked my blog name as a new cat food brand! Look me up and get a bunch of cat food flavors or flavours! At least they are grain and gluten free! An annoying sideline, I recently decided to buy a new domain name and wanted the “dot com” version only to find out someone in Quebec bought it a week before! I cannot seem to be quick enough off the mark. Naturally when I go to their domain, they are not using it! Notes from the UK may get trademarked for selling those yellow square sticky notes people stick all over their desks and paperwork. You better get a move on before it is too late!

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  16. Hey, it’s my friend Ellen.
    Great to see you at Blogger’s Pit Stop last week.
    I am reading more about branding. Is that like trademarking?
    Thanks for bringing your post to Blogger’s Pit Stop last week.
    Janice, Pit Stop Crew

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    • And thanks for everything you do to keep the pit stop running.

      As far as I understand the way people are using the word branding, the two are linked but not the same. Trademarking is the legal end of it–the part that keeps everyone else away from something a corporation wants people to associate with its brand. Should’ve is a ridiculous example–a word in too common usage to work (in my highly skewed opinion).

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  18. I thought the courts being tied up with silly stuff only happened here in the USA! I guess the apple doesn’t fall far from the tree, since everything we know here about the judicial system was most likely brought over from the UK with the colonists and hacked to death once it got here. :) I can make those remarks with lousy authority since I live in the place the first colonists got lost. Greetings from the Outer Banks of NC!

    Great post! I enjoyed it!

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    • Given that humans are a difficult–and although I do like people, I begin to think, extremely silly–species, I’d be surprised to learn that this sort of thing is limited to countries that derived their legal systems from the U.K. But our shared history may determine the sort of silliness we’re prone to. It’s like schizophrenia: It occurs in the same proportions across all cultures, but the content of people’s voices differs from culture to culture.

      Boy, was that ever a strange bit of free association.

      Thanks for the greeting. Good of you to drop in.

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