-John Reinan, Senior Director, Media Relations, Fast Horse
I’ve been thinking about trademark bullying, and I was all set to write a surprising piece standing up for the bullies. You know, the big companies that spend giant piles of money developing products and services, and then hiring marketing geniuses like me to name them, and then hiring legal gods like my friends at Winthrop & Weinstine to protect the duly trademarked names.
It’s simple, really. If someone owns a trademark that they’ve invested a lot of time and money to develop, then it’s not fair for some random person halfway across the country to come up with a similar name and start using it in the same field.
See, the popular stance would be to stick up for the little guy – to take the side of David against Goliath. But I figured to put myself above that. If Goliath wins on the merits, so be it.
But then I looked at this story and started to think about things differently. Not because I suddenly felt for David – but because I suddenly realized that the English language doesn’t contain enough words to give everyone a uniquely distinctive trademark in every respect.
Think about it. In the case I cited above, a big company with a product called ThermWise was suing a small insulation company operating as Thermal-Wise. OK, the names are kind of similar. So let’s say we make Thermal-Wise rename itself. How many possibilities are there for a name that conveys the business’s function of insulating people’s homes?
Looks like anything with the word “thermal” or the root “therm” could cause trouble. So right there you’ve probably taken a third of potential names off the table. Because if there’s a litigious ThermWise loose in the world, odds are that there’s an equally litigious ThermSmart right behind them.
How about “heat?” Can Mr. Small-Business Owner work with that as a base for nomenclature? Well, maybe. But there are Heat Saver insulated window shades and HeatSavr insulated swimming pool covers. There’s an infrared heater called HeatSmart and an insulation program called Heat Smart.
“Warm?” There’s a Warm ‘N’ Cozy Insulation Co., Opti-Warm Synthetic Insulation and Warm-N-Dri Insulation. You see where I’m going with this.
I’m all in favor of trademark rights. Justice demands that we protect them within the law. But at the same time, pragmatism demands that we cut at least some modest degree of slack to people who are simply trying to give their companies a logical name describing the product or service they provide – because there just aren’t that many names to go around!