Re: Aphorisms and Copyright

Leah Gadzikowski <lrgadz01[_at_]gwise.louisville.edu> wrote:
>
> On Fri, 21 Aug 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
> >
> > Length of text is a criterion for copyright protection in the US.
> >
> > "The following are examples of works not subject to copyright and
> > applications for registration of such works cannot be entertained:
> >
> > (a) Words and short phrases such as names, titles, and slogans;"
>
> How can Ralph Lauren sue the American Polo Association to stop them from
> using the word "Polo" then? I've always thought that this was a really
> stupid lawsuit since the game was there for a least 100 years before
> Ralph, but there it is.

Lauren is suing under trademark, not copyright (unless his claim is for a distinctive logo image as well as the word mark). Trademark protects the right to use a word or short phrase (or long phrase, or image or a host of other possibilities) as a label to identify the origin of goods. Trademark is territorial in nature. It is limited in most instances by geography and product line.

Lauren can use the mark "Polo" to label clothing. The American Polo Association can use it to label saddles. There would be no conflict since the products are not competing with each other and the consumer would not be confused into imagining that Ralph is the designer of the APA Official Saddle. Someone else could trademark Polo for use on tires.

But infringement might arise if the APA starts selling shirts under the Polo label. Ralph will argue that customers will now wonder whether he is making these shirts since he is identified as a shirt manufacturer. He may bring suit. The APA may have several defenses, including the fact that polo is a generic name for certain shirts and Ralph can't co-opt it as to such shirts.

The US has fairly recently granted special rights to owners of famous marks. Their "territory" is not limited by geography or product line. I haven't looked at the Lauren case, but as the owner of a famous mark, he can now shove aside any newcomer entering any market under a Polo label. He cannot, however, evict users who were trading under the Polo name before he became famous.

Diane Cabell, Esq.
http://www.mama-tech.com/

Fausett, Gaeta & Lund, LLP
Boston, MA
http://www.fausett.com/ Received on Fri Aug 28 1998 - 15:07:15 GMT