Jägermeister seeks to block Milwaukee Bucks logo trademark

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A young singer named Lennon Murphy wants to trademark the name "Lennon," but Yoko Ono is challenging her in court. Attorney Joe Dreitler breaks down the basics of trademark law. Oh, you may recognize the deep, dulcet tones of ring announcer Michael Buffer, who describes that phrase on his Web site like this: So much so that Buffer has trademarked the phrase.

Yup, he owns it, let's get ready to rumble, much in the same way that basketball coach Pat Riley got the trademark for the phrase three-peat when the Lakers were headed for their third consecutive championship.

And more recently, a news item circulated around the Web about a dispute in the case of Ono v. The young singer named Lennon Murphy applied to trademark the name Lennon for, quote, "Entertainment services in the nature of live performances by a musical group, providing information regarding musical artists and providing recorded performances of musical artists by means of a global computer network. And as you can imagine, Yoko Ono isn't going to let that go, and a, quote, "Cancellation proceeding has been filed at the Trademark Trial and Appeal Board, and is now pending.

All of this over words, but it is really much more, as our next guest will tell you. Joe Dreitler is an attorney who has been deeply involved in trademark law for more than 25 years. So let's just start with the basics. What is a trademark, as opposed to, say, a copyright? Well, a trademark is defined as a word, a name or a symbol or a combination that's used by one person to identify their goods or services from those of another.

Basically, you think of it as - it's an indicator of origin. It tells you who am I, or who I am. That's what a trademark is. Whereas a copyright and a patent, which are both totally different from that, originated with the Constitution because the founding fathers say gee, we should protect artists and inventors.

And so they did. And that's why copyright law goes back as part of the Constitution, and it protects works of art for a very limited time, because that's in the Constitution, as well. So a copyright is basically a work of art - a book, a song, a photograph, a movie, a painting, and it basically protects the expression of it, not someone's idea. If I have an idea for a great film or a great book about life during the Civil War in the South, I can't protect the idea.

I can only protect the expression. It lasts for a limited period of time, about 70 years plus the life of the author, that's been extended, and a patent - again, it's a limited time, 20 years. And that protects functional features and processes that are novel and non-obvious, and it just prevents third parties from selling them.

Obviously, we know things like a new drug, a method of making an airplane - the Wright Brothers had a patent on that, and Edison had a patent on a light bulb. So those are the three pieces that go together to be intellectual property, and trademark is the one that is sort of like it's the gift that keeps on giving. Oh, absolutely, you have to protect it. You not only have to use it, because if you don't use it, you lose it. That's the downside of it.

And as you can imagine, if you look back at a lot of products that are no longer around, people who own them abandoned them. There's one that obviously that, you know, it's probably not correct to talk about it, but it was a weight-loss product called Aids.

It's probably not sold, and I suspect that that trademark's been abandoned by the owner, who doesn't want to use it. The other part of protecting it is if someone is out there and infringes, or basically rips off your trademark, or what you view as a trademark of yours, you have to go after them.

The law requires that. And lawyers have, for years, given the horror stories of what happens if you don't. Terms like elevator and escalator were at one time trademarks. Furnace was a trademark. And basically, their patent expired, competitors started using the term because there was no other term to use. And courts said, look, you didn't protect that thing, so anybody can use that to describe that product.

So is that why a big corporate company like, say, a Disney, or a Viacom, will come down hard if some janitor somewhere paints a Mickey Mouse on the side of a school? You always wonder why a company didn't go after those people. Now, part of this is about, what we're talking about, which is licensing and money. We can certainly talk about that. But the other part is, just what you said, which is if you don't go after them, at some point, if another - a bigger competitor that you're actually suing for using one of your trademarks, they will go to the court and say, look, these people had all of these third-party uses of their name.

They didn't take any action. They've abandoned rights to their trademark, so why shouldn't I be able to use it? And so, obviously, the lawyers succeed on that, and the suits say, squash them like a bug.

We talked about the - we played at the top, the Michael Buffer, let's get ready to rumble. And we also talked about Pat Riley trademarking the phrase three-peat. I want to play for you a phrase that has actually gotten a trademark. Can you hit that for me? Well, it goes back to, again, just what we said at the beginning. What is a trademark? It's an indicator of origin. Do you associate that with one person?

I mean, I like trademark law because it's so much a part of our life. Walk down the aisle of your corner grocery or the biggest retailer, and you have got trademarks. You have got trade dress, which is the package it's described in, the brands, the logos, all screaming, take me home, take me home. Those are all trademarks. And that's what trademark law is about. You don't have to know who makes Tide to know that's a brand name, or a trademark, and it should be protected.

And so when you ask, how can Paris Hilton do that? Well, the law basically says if a term, even something that that's simple, like that's hot or let's get ready to rumble, becomes so much used in the public and associated with one person, that the public associates with them and no one else, then they can basically claim trademark rights for that use.

And now, of course, the problem with all of this is, it's one thing for her to say it in connection with a TV show. It's another thing for her then to start basically using it on clothes or on booze or on something else. And this basically goes back to what we're talking about, which is trademark licensing, which is not that old in this country.

And if you really what to know, it all goes back to the case of a porno film and a portable toilet, if you'd like to hear that story. No, it really doesn't go that bad.

I'll summarize it for you, which was back 25 years ago, the people who came up with the porno film, "Debbie Does Dallas," got sued.

And they got sued by the National Football League on the grounds - to avoid first amendment problems - that the trade dress, the trademark if you will, of the cheerleader's uniform that the woman wore in that porno movie was a trademark of the Dallas Cowboys. And that basically that was trademark infringement. And the court said, absolutely right, and they enjoined it. How does the portable toilet come about? Well, 25 years ago, there was an outfit that started selling porta-potties that you see on the side of the road.

And there was an NBC fellow who had basically been using and introduced for many years under his name called - and what do they call a porta-potty? Guess who went to court and didn't want here's Johnny used on a porta-potty? So basically, the court said, absolutely. That phrase, here's Johnny, has been so associated with John W. Carson, that somebody using it on a portable toilet, people would assume that somehow that's connected or sponsored by Mr.

Carson, the same thing with the Dallas Cowboy's cheerleader. And so that's really where Paris Hilton is. It's sort of an extension of that, where you now have phrases that are used by people.

Donald Trump did the same thing a few years ago. And it's amazing to me because of the value and the power of licensing, you're talking about all this. I mean, Britney Spears, for all of her issues, you know, brings in over a hundred million dollars a year - I read that figure somewhere - selling and licensing her name to perfume and other products. So there's a lot of money to be made off of licensing trademarks. And what's interesting is, when you think of Paris Hilton or Britney Spears, is that people out there, ordinary people, file trademark applications for that.

I went online to the trademark office, and while we noted that Paris Hilton has registered that's hot for like liquor and clothes, there were 10 or 12 other people, who had no grounds to do it, but filed trademark applications.

Now, they all got rejected. But it just shows you that what is the power of celebrity these days, that you can come up with a phrase or a slogan that ties into somebody, and everyone thinks, we can make a buck off it, and they do it. And I know that you think in the world of Internet that getting a trademark is a good thing if you're a small business.

It has to be. And, you know, years ago, 10, 15, years ago, before there were commercial aspects to it, you know, the Alison Stewart spa out on Long Island or in midtown, basically was one place. Nobody knew about it other than if they lived in, let's say, a hundred miles. Now, you can advertise, you can promote it, you could have more than one. You would get customers coming from all over the country. Now whether that's a spa, or whether that's a small food company, people are advertising on the Internet, and truly, they're doing business literally all over the world.

And so to the extent that you want to prevent someone else from trying to do just what we've seen with Paris Hilton, that's hot, and Donald Trump, you're fired, you want to register your name as a trademark. In all seriousness, you really want to do that.