This thing called “Obamacare”, you might have heard about it. Before you leave the page thinking this just a political rant about the merits or absurdities of the healthcare law known as Obamacare, lend me your ears. The trademark angle is slightly more colorful than a more typical blog posting on tax and constitutional controversies (trademark law is so interesting.... and fun. I like to think it is important too, even if it isn’t as heady as constitutional law).

There have been a flurry of trademark applications that include the word “Obamacare” for just about everything. That is not a euphemism. Literally, almost every type of good and service you could imagine. Everything from television talk shows to undergarments.  This is just another example of how trademarks mirror pop culture as people hope to capitalize on a coined phrase or trending keyword and become as famous as that guy who put the smiley face on a t-shirt all those years ago. But many times, there attempts fail for one of a few reasons, some of which I have discussed in previous posts). When it comes to phrases that incorporate the names of famous people, the main reason that the trademark application is refused is because inclusion of the famous person’s name in the trademark implies false association or endorsement. 

It is often said that imitation is the sincerest form of flattery. That might be true in many aspects of our life, but it isn’t always true for trademark owners, least if the person doing the flattering is ripping you off somehow. But how close does something have to be to truly be deemed an imitation? In the arena of trademark law and unfair competition, you might sometimes be surprised about how close you can actually get to using a trademark that is loosely based on another trademark. To see what exactly I’m talking about, lets grab the proverbial cart and go on a little shopping spree at Trader Joe’s.

Some people (except those on the West Coast, where Trader Joe’s has about 200 stores) may not know what Trader Joe’s is. Trader Joe’s is a specialty grocery store. They sell a lot of the same things that big-box grocery stores do, but they have specialty foods and a lot of the stuff they sell carries the “Trader Joe” name specifically. It is what you might call a boutique grocery store because most locations are small and they cater to customers with specific tastes. In recent years, the store has garnered somewhat of a cult following given the unique products that the store offers including blueberry cultured coconut milk (sounds kind of weird) and spicy seaweed ramen (sounds really weird). My personal favorite is the chipotle seasoned almonds, but I digress.

Last week, an app developer was in the news for creating the world’s biggest digital blob. Okay, its really just a gigantic compilation of all the facebook profile pictures ever uploaded, arranged chronologically by date of upload. That’s a grand total of 1.2 BILLION images weaved into a massive collage that resembles the dreaded snowy picture that one would often get on their television screens before TV’s became more aesthetically pleasing with their screens and simply displayed “no signal” instead of snow.

Undoubtedly, there is no way that the creator could have obtained the permission of every single facebook user prior to posting their profile pic. Indeed, the creator relied on a special algorithm that scanned facebook profile pages for each user and downloaded the profile pics. All those profile pictures, most of them are photographs that people took themselves, right? And some users probably use paintings and pictures of other things (besides themselves), where the pictures were taken by other people, right? Take this quote from 2011, for instance from the British Journal of Photography:

In case you hadn’t heard, Burger King is attempting to assert its authority as the King of fast food. Not that the fast food wars are anything new, but it seems that Burger King’s latest public relations campaign is frying a lot of people’s brains and testing the bounds of the most seasoned fast food ad campaigns.

This week, Burger King made a series of announcements across Twitter and other social media outlets that it was temporarily re-branding itself as “Fries King”. This prompted some business journalists to lament the fact that Burger King’s ad stunt is really just a gimmicky ad campaign that is only contributing to confusion on the part of consumers. No, not the same type of confusion that we trademark lawyers speak of whenever a trademark owner finds that a third-party is using a logo that is similar in appearance to the trademark owners’ logo. Burger King’s temporary re-branding couldn’t be confusing in that sense because consumers are keenly aware that “Burger King” and “Fries King” probably one and the same. After all, the Fries King logo uses the same coloring and arrangement of elements as the Burger King logo not to mention that the main point of contact between consumers and the Fries King logo is at a physical storefront for Burger King, where consumers undoubtedly recognize other symbols associated with Burger King.

Now we come to the namesake of this blog. The true aim and solemn goal that I try to affect each time I put finger to keyboard: educating the world on the dangers of generic trademarks.

When most of us were kids, we were told not to say certain words. We were admonished that these words are “bad” and that if we used them, evil things would pay us a visit and we could even end up with soap in our mouths. When we grow up, there are plenty of bad words too, although the list of bad words may not be the same as it was when we were kids. Well it wasn’t too long ago that “BlackBerry” was a bad word. It symbolized obsession and workaholism, that constant urge lurking at the back of your mind like the guy in the back alley who knows you have an addiction. Indeed, the impact of the BlackBerry devices on people’s lives was so significant that it earned the not-so-glamous mantra of “crackberry”, a not-so-subtle reference to the fact that a BlackBerry device is as addicting as a drug.

No, I’m not saying that blackberry is in fact a bad word, but it did almost go the way of becoming one in trademark owners’ and lawyers’ minds.

Let me do some explaining before you tell me to wash my mouth out.