The Trademarking of Everyday Phrases: A Looming Threat to Small Business and Creative Expression?
Imagine receiving a cease-and-desist letter for using a common phrase on your products. It’s a scenario Jillian Popplow, owner of The Lumberjack’s Daughter in Nova Scotia, recently faced after being told “sex, drugs & lobster rolls” was trademarked. This isn’t an isolated incident. As trademark applications for increasingly colloquial expressions surge, a chilling effect is taking hold, raising questions about the future of creative freedom and the viability of small businesses. The potential for overreach in trademark law is rapidly escalating, and it’s a trend that could fundamentally alter how we communicate and conduct commerce.
The Rise of Trademarking Common Phrases
Traditionally, trademarks protected brand identifiers – logos, company names, and unique product slogans. However, a growing number of entrepreneurs are attempting to trademark phrases that, while perhaps gaining popularity through their efforts, aren’t entirely novel. Nadyne Kasta, the artist behind “The Girl From Away,” argues she coined the phrase “sex, drugs & lobster rolls” and built her brand around it. While her claim of initial creation is debatable, the case highlights a critical shift: the attempt to monopolize a cultural expression. This isn’t just about a quirky slogan; it’s about the potential to control language itself.
“The core principle of trademark law is to prevent consumer confusion. If a phrase is truly commonplace, registering it as a trademark becomes problematic because it doesn’t necessarily identify a specific source. The ‘French press’ case is a prime example of a trademark being invalidated because it became a generic term.” – Reagan Seidler, Copyright and Trademark Lawyer (as cited in the CBC article)
The “French Press” Effect: When Trademarks Expire
The case of “French press” serves as a cautionary tale. Bodum initially trademarked the term, but the Canadian Federal Court revoked it after it became widely adopted as the generic name for the coffee maker. This demonstrates that a trademark’s strength hinges on its ability to uniquely identify a brand. If a phrase becomes synonymous with a product category or a general concept, its trademark protection can be challenged and ultimately lost. This principle is crucial to understanding the potential fate of Kasta’s trademark.
Beyond Lobster Rolls: A Growing Trend
The “sex, drugs & lobster rolls” case isn’t unique. Across various industries, entrepreneurs are seeking to trademark phrases that resonate with specific communities or capture a particular vibe. This trend is fueled by the desire to protect brand identity and capitalize on viral marketing, but it also creates a minefield for other businesses. A recent report by the Canadian Intellectual Property Office shows a 15% increase in trademark applications for phrases considered “colloquial” over the past five years, signaling a significant shift in trademarking behavior.
Did you know that you can search the Canadian Trademarks Database to check if a phrase is already trademarked? It’s a crucial step for any business owner before investing in branding materials. Visit the Canadian Intellectual Property Office website to learn more.
The Implications for Small Businesses
The financial burden of defending against a trademark claim can be crippling for small businesses like The Lumberjack’s Daughter. Legal fees, rebranding costs, and potential lost revenue can quickly add up. Even if a business ultimately prevails, the time and resources spent fighting the claim can be devastating. This creates an uneven playing field, favoring larger corporations with deeper pockets. The chilling effect extends beyond legal battles; many small businesses may simply avoid using potentially trademarked phrases altogether, stifling creativity and innovation.
The Rise of “Trademark Trolling”
A concerning offshoot of this trend is the emergence of “trademark trolls” – individuals or companies who acquire trademarks solely to profit from licensing fees or legal settlements. They actively monitor the market for potential infringements and aggressively pursue legal action, even if the infringement is minor or unintentional. This predatory practice further exacerbates the financial risks for small businesses and discourages entrepreneurial activity.
Future Trends and What to Expect
Several factors suggest this trend will continue, and potentially intensify. The increasing importance of branding in a competitive marketplace, the ease of trademark application, and the growing awareness of intellectual property rights are all contributing factors. However, several countervailing forces could emerge. Increased public scrutiny of aggressive trademarking practices, potential legislative reforms, and judicial decisions that prioritize fair use and consumer understanding could help curb the overreach.
Key Takeaway: The future of trademark law will likely involve a delicate balancing act between protecting brand identity and preserving creative freedom. Expect to see more legal challenges to trademark claims for common phrases, and a growing emphasis on the principle of “genericide” – the loss of trademark protection when a term becomes generic.
The Metaverse and Digital Trademarks
The rise of the metaverse and Web3 introduces a new layer of complexity. As virtual worlds become increasingly integrated into our lives, the need to protect digital brand assets will become paramount. Expect to see a surge in trademark applications for virtual goods, services, and experiences. However, the unique characteristics of the metaverse – its decentralized nature and emphasis on user-generated content – may challenge traditional trademark enforcement mechanisms. Explore more about the implications of Web3.
Frequently Asked Questions
What is a trademark?
A trademark is a symbol, phrase, or logo that legally identifies the source of goods or services, distinguishing them from those of others. It protects brand identity and prevents consumer confusion.
Can I trademark a common phrase?
It’s difficult, but not impossible. The phrase must be distinctive and not merely descriptive of the goods or services. If the phrase is already widely used, it’s unlikely to be granted trademark protection.
What should I do before using a phrase in my branding?
Conduct a thorough trademark search using the Canadian Intellectual Property Office database. Consider consulting with a trademark lawyer to assess the risks and ensure your branding is legally sound.
What is “genericide”?
Genericide occurs when a trademark becomes so widely used as a generic term for a product or service that it loses its trademark protection. “Aspirin” and “escalator” are classic examples of trademarks that became genericized.
The case of “sex, drugs & lobster rolls” is a microcosm of a larger struggle – a struggle to define the boundaries of intellectual property in an increasingly interconnected and creative world. As trademark law evolves, it’s crucial to strike a balance that protects legitimate brand interests without stifling innovation and limiting freedom of expression. What are your thoughts on the increasing trademarking of common phrases? Share your perspective in the comments below!
