Trademarks in the Trenches; How Newspapers Use and Abuse Them, and Why
Peterson, Roger S., Editor & Publisher
CORPORATIONS AND other holders of trademarks get nervous when newspapers use their brand names incorrectly.
The list of lost marks, such as aspirin and escalator, is exceeded in length only by the number of Maalox brand antacids or Grecian Formula brand hair coloring applications that corporate lawyers and marketers use to mask their anxiety.
U.S. trademark law has four categories: trademarks (for goods and products), service marks (American Express's "Membership has its privileges"), certification marks (Good Housekeeping Seal of Approval), and collective membership marks.
The term Realtor, a collective membership mark of the National Association of Realtors, was originally coined in Minneapolis in 1916, before agent licensing was required. NAR counsel Michael Thiel explains that membership marks are often used as proper nouns, whereas product trademarks are more properly used as adjectives, as in Thermos brand insulated container.
"Usually reporters in the real-estate section know us and our Realtor mark," said Thiel. "The problem is when someone outside the real-estate beat writes a story. It may be entirely correct, but the headline is written by someone else who wants to cut words by writing realtor instead of real-estate broker."
Corporate press releases typically use a superscript [R] or [TM] next to the first use of the mark, and often conclude with a "note to editors" about the marks and who owns them.
But how do editors view trademarks?
"I believe newspapers should help guard trademarks, because newspapers themselves are always guarding their own mastheads. . . . You know, whether it's the Herald or The Herald," says Mike Middlesworth, formerly business manager and managing editor of the Honolulu Advertiser.
At the News-Gazette in Champaign, Ill., copy editor Pete Wetmore agrees.
"We need to be accurate," he says. "It bothers me when I see the name of my newspaper misused. We use the AP stylebook. But we supplement it with the Trademark Checklist compiled by the International Trademark Association, and we call the trademark office if necessary. We use generics whenever possible. For example, we would use trash bin instead of Dumpster. Dumpster is a trademarked term. We use brand names only when it's essential to the story, but we do not indicate trademark superscripts."
Policies on trademarks vary by copy desk. As Middlesworth says, "If the copy-desk chief is in tune with the copyright issue, then capitalization and the other rules are followed. In some places, though, I've found people who go out of the way to avoid using a trademark and use the generic word instead."
"The copy editor," Middlesworth adds, "is the last bastion of defense on the trademark issue."
Do others in the newsroom see the issue differently?
"I am mindful that some things that seem generic are really trademarked terms," says Clint Swett, business reporter and former copy editor at the Sacramento Bee, "but I don't give it a whole lot of thought."
Peter Bhatia, managing editor at the Portland Oregonian, agrees they aren't a top priority, saying, "The whole trademark issue is not one that occupies a lot of people's time."
Editors and reporters say the most vigilant trademark protectors are companies like Kimberly-Clark Corp. (Kleenex brand facial tissue), CocaCola Co., Xerox Corp., Dow Chemical Co. (Styrofoam brand insulation), and Johnson & Johnson (Band-aid brand adhesive bandages).
"Over the years, I've gotten letters from many companies on the issue," Middlesworth claims. …