On 3/19/99, Howard G. Zaharoff <hgz[_at_]buslaw128.com> wrote:
>
> Consider: Suppose I intentionally refer to "making xeroxes" in my
> published writings, despite objections from Xerox Corp.and my own
> awareness that doing this increases the risk that the valuable XEROX
> trademark will become generic and thereby cause Xerox to lose the
> tremendous value and goodwill associated with this mark. Aren't I
> intentionally, and without good cause, doing something I know could
> cause great harm to Xerox? Aren't I willfully risking great injury
> to one of its most valuable property rights?
Let's see then if I understand. Speech that annoys Xerox, or even non-libelous speech that could cause economic harm to Xerox, is actionable? What legal duty do I have to Xerox to characterize its trademarks in the manner that Xerox demands?
> I'm not saying that this should be or is currently actionable. But I
> could certainly imagine such a claim being recognized at law at some
> point, particularly in light of the current trend to deamnd increasing
> breadth and protection for available forms of intellectual property.
> And I most surely would not tell a client that they can do this with
> absolutely no risk of legal repercussions.
And how many times can you ever tell a client that they can do something with "absolutely no risk of legal repercussions?" In response to any given question you advise your client as to the legal standards and as to the possible risks of lawsuit *in spite of* those legal standards. You don't make up legal standards that some court might fashion on a bad day.
Personally, I think publishers capitulate to the demands of companies just because it's easier. After all, capitalizing someone's word mark in an article or a novel doesn't cost much, whereas refusing may. As long as the author doesn't object (assuming he still has any say in the matter), why not do it and make those silly companies and their even sillier attorneys go away?
Even if I am right, though, it doesn't mean the capitulation is legally mandated.
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