Re: Can you own the number 10.5% ?

On Tue, 02 Feb 1999, Bob Stock <bstock[_at_]attymail.com> wrote:
>
> On 2/1/99, John R. Levine <johnl[_at_]iecc.com> wrote:
> >
> > A friend of mine recently wrote a book about personal financial
> > software. He mentioned in passing that the long term return on stocks
> > is 10.5%, a number that he'd read in a newsletter from Vanguard. That
> > number is widely cited in the press -- in a few minutes I found it on
> > the web in an article in the Detroit News and a feature piece on family
> > finance on Money Magazine's web site, with no citation of a source in
> > either case.
> >
> > Shortly after the book came out, his publisher received a letter from
> > Ibbotson Associates, who he'd never heard of until that point, saying
> > that the 10.5% number was theirs since they were the only people doing
> > long-term analysis of market returns, that was a number they'd
> > calculated, and he'd misappropriated their proprietary number. I don't
> > know if they demanded a specific remedy or not.
> >
> [snip]
> >
> > Am I missing something here?
>
> Not in my opinion. Seems laughable to me, but perhaps *I'm* missing
> something.

  If one accepts the premise that a copyright may not be had on a fact, and that a series of digits represents a quantity, which is in essence a fact, which can be represented in only one way (and is thereby functional as well) -- then the conclusion that numbers are not copyrightable can be understood.

  There are three other theories for protecting a calculated number. Trade secrets could be used, but only if the number is kept secret (publishing the number in a book eliminates all hope for protecting the figure). IN other cases, where a number is calculated and is part of some internal calculation made to gain an advantage, the number might be part of a formula, and as such protectable. This does not apply in the case presented above.

  Another possibility is trademark protection. If the "10.5%" were developed as a "brand" to identify the source of services, then the term might become a service mark, and be protectable. The trademark office will grant a trademark to words, sounds, colors, and odors -- as well as to "marks" (illustrative logos or "icons" that identify a source of goods). If the number were developed in this fashion, it could be protected.

  Finally, patent protection might be afforded to a whole fomulaic method of financial dealings that resulted in profit. The recent State Street Bank decision held that such patents are proper. From the description you gave, the bare number 10.5% probably does not define enough of a process to be protectable.

  Under whatever theory, or misguided theory, you should seek the counsel of an attorney whenever you receive a letter like the one you described. Only an attorney, meeting with you and asking you questions, can ascertain whether you are at legal risk, and to what degree. An attorney can probe for the legally significant facts, some of which are not at all obvious to the non-attorney. Keep in mind that even if the company has a losing legal position, they could bring a lawsuit against you, and you would have to spend a significant sum defending yourself. Defending a lawsuit without an attorney could cost you your business, or your life savings -- there are many ways to lose a lawsuit that have nothing to do with the merits of the suit.

  The above material is not legal advice. The above is intended to provide a set of topics for discussion between you and your lawyer, when you seek legal advice from an attorney.

-- 
Thomas E. Workman Jr.
41 Harrison Street
Taunton, MA 02780

EMAIL: tworkman[_at_]erols.com
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