I may be wrong, but legally Coca-Cola had to protect the slogan, otherwise they would lose the copyright, no? The "our advertising will help you" defense doesn't hold up in court.
Can any lawyers confirm?
Can any lawyers confirm?
Was "It's the real thing" trademarked? And furthermore, trademarks are only usually enforced among competitors. Apple Computer can't sue Apple Dry Cleaning for trademark infringement. Well they can, and occasionally do, but it isn't a given that they will win. Usually you have to show damages, and Apple Computer isn't damaged in any way by having a dry cleaner use the name of a popular fruit. Similarly, I don't think Coca-Cola lost anything by having the phrase "it's the real thing" associated with a literary work.
My question for the lawyers: Does a letter like this count as "defending a trademark"? Or would Coca-Cola have had to actually take these publishers to court over it?
Word Mark IT'S THE REAL THING
Owner (REGISTRANT) The Coca-Cola Company CORPORATION DELAWARE ONE COCA COLA PLAZA Atlanta GEORGIA 30313
Registration Date December 7, 2004
Goods and Services IC 032. US 045 046 048. G & S: Non-alcoholic beverages, namely, soft drinks [ ; syrups, concentrates and powders for making beverages, namely, soft drinks].
FIRST USE: 19421231. FIRST USE IN COMMERCE: 19421231
If it was up to me, I would allow only for trademarks in synthetic, non-english words. E.g "Soylent" or "Pepsi" or "McBurger". Not for actual english words ("Windows") or phrases.
You should be able to use the phrase outside that context. Of course you might have fun time in court defending that right.
While Coke may be asserting they own the trademark for "It's the Real Thing", they're being a little oblique with the fact that they only have it for soft drinks and not printed publications. So it seems Coke is trying to bully the publisher when the publisher seems to know that they are in a different classification. They are pretty much saying this in a sarcastic way in their reply.
cf: "Lies: and Lying Liars Who Tell Them (A Fair and Balanced look at the right)" http://www.amazon.com/Lies-Lying-Liars-Tell-Them/dp/04522852... - was sued by Fox News because they own "Fair and Balanced." The suit was thrown out, because it's selling a book, not the news.
I suppose a court might find that using it to describe, say, bourbon, would be an infringing use, even though CC does not claim alcoholic beverages. More so if the packaging or flavor was intended to mimic a cola.
But you could market your new line of toilet paper or watches or hippo-hide whips as The Real Thing, and Coke would have no more of a leg to stand on than they did with the book publisher.
It's also appropriate to note that the company claiming the trademark must actually use it reasonably often -- you can't claim "Softer than a cloud" for your waterbeds and then not use it for some number of years. That one will be trickier, though.
One one hand it protects the interest of the registering company, by preventing competitors from benefiting from their marketing.
On the other hand, it protects the public by protecting the public against confusion about the origin of a product or service.
E.g. if Dirt-T-Water Inc. starts selling poor quality unfiltered tap water and market it with "it's the real thing", it'd benefit from Coca Cola's marketing and harm Coca Cola's brand, but the reason for that is that it would capitalize on peoples trust and expectations of the Coca Cola brand by confusing some portion of them into associating the two.
Whether or not the public would be confused is also a key test in most jurisdictions as to whether or not a trademark has been violated.
So unlike many other form of protection for corporate assets, trademark protections - when not overreaching - often very directly aligns with public interests.
I'd actually say that the public is as likely to be misinformed by the owning company's marketing as it would be from the copycat company's in this case. It's not like saying "it's the real thing" makes coca-cola "the real thing", or saying "100% agnus beef" makes whatever BS the sell at McDonalds good to eat.
Sure, there might be some confusion if Dirt-T-Water starts marketing it's stuff with "it's the real thing". But that would be minimal anyway, because the two products would have different logos (by law) and different names (by law).
At best they would benifit subliminally from those buyers that buy their stuff because the slogan reminds them of something.
"Just do it", for example, is extremely recognizable as Nike, whose brand is associated (deservedly or not) with high quality. If you put "Just do it" on a shoe ad, people will assume (reasonably) that it's made by Nike. Without trademark protection, it would be easy for another business to exploit Nike's reputation to pass off shoddy goods.
It wouldn't literally prevent all cases. It would allow for damages to be awarded to victims, paid for by the perpetrators, which would deincentivize manufacturers from attempting to deceive customers. Contract law provides precisely the same protection here as trademark law, except it's better, because damages can be awarded to the people who were actually deceived and potentially harmed. Also, the great side effect is you don't have all the ludicrous results of trademark law, like ownership of letters, words, phrases, shapes, and colors.
Except if you don't have that, or its equivalent, the system can't work.
Whether the mechanism is based on contracts or ownership, the end result is that the only kind of soda which can have that bottle shape and that kind of logo design is the one made by this specific company. Otherwise, it's too confusing, and fraudulent misrepresentation is too easy.
Specific colors, words, shapes, and patterns are how human brains distinguish things. They have to be distinct and recognizable for people to differentiate between different kinds of product, especially when they're different varieties of the same basic thing.
It seems you're getting hung up on specific terms, such as 'own'. That's not how the law works: Broad concepts are whittled down into specific terms of art in each individual branch of the law, which is what has happened to the concept of 'ownership' when applied to trademarks. It's a very different thing from owning a car, but there are certain vague similarities that justify the re-use of the concept.
I'd frankly like to avoid the headache of pursuing damages and just have that dealt with between the companies who want to go to the trouble of trademarking something so I can just buy what I want.
For example, there was once a restaurant named "McDonald's", owned by someone named McDonald. The restaurant existed before there was a McDonald's chain of restaurants, and the restaurant name corresponded with the owner's name. Notwithstanding all that, the corporate giant McDonald's was able to force the owner of the restaurant to change the name on the ground that the original name would mislead the public.
EDIT: I researched this further, and it turns out there have been several "McDonald's" restaurants that came to the attention of the corporate giant -- some legal actions succeeded, some failed:
http://en.wikipedia.org/wiki/McDonald's_legal_cases
Defenses of everyday phrases like "It's the real thing" can only succeed if the plaintiff can show there is a real probability of public confusion or injury to commerce or reputation -- it's not enough to say that the phrase is in wide use. A counterexample is Apple Computer and Apple Music (the latter owned by the Beatles). In this case it was decided that, because they were in different businesses, there was no great likelihood of public confusion.
Until iTunes was released.
That's a bad example because Apple Computer eventually did enter the music business, with itunes, contrary to an earlier court's ruling that they stay out of that industry.
I think they ended up just paying Apple Music a ton of money. So that's basically a case of infringing trademark, but having enough money to pay off the company whose mark you're infringing. As we all know, enough money solves any problem.
I would argue that that makes it a good example -- they eventually crossed the line and the issue had to be revisited. BTW thanks for posting and correcting the example.
> I think they ended up just paying Apple Music a ton of money.
That makes it a perfect example -- originally there was no issue or conflict, but eventually the two entities collided.
> As we all know, enough money solves any problem.
So it seems. I think it's a perfect example of how these things sort themselves out, because over time, it visited both extremes -- not an issue, then very much an issue.
This wasn't a one time thing, by the way. There were a whole bunch of suits between the two companies over the years, I think starting way back in the 70s.
It's interesting how Apple Music was initially the big company in the dispute, and Apple computer the little guy getting pushed around. Watch how over the years, the power dynamic completely reverses itself, until Apple, inc. (no longer Apple Computer) is the one calling the shots.
(Okay, found a link. It's "Apple Corps", not "Apple Music", by the way.)
(http://en.wikipedia.org/wiki/Otorohanga)
> In 1986, the town briefly changed its name to "Harrodsville". This was a protest in support of a restaurateur, Henry Harrod of Palmerston North, who was being forced to change the name of his restaurant following threatening lawsuits from Mohammed Al Fayed, the owner of Harrod's department store in London.
> As a show of solidarity for Henry Harrod and in anticipation of actions against other similar sounding businesses, it was proposed that every business in Otorohanga should change its name to "Harrods". With support of the District Council, Otorohanga temporarily changed the town's name to Harrodsville.
http://en.wikipedia.org/wiki/Laches_(equity)
This is a strong legal basis for abandoned works infact being safely usable. If somebody sleeps on their rights for 10/20/30 etc years, and the waits for a big payday to act, its not equitable and in good faith.
They would then reserve the right to pursue non-licensed infringement of the trademark.