by Mark L. Levinson

Adri and I were in the company’s kitchenette.  It was that time of night when you go back to the pizza box for the cold cheese that’s stuck to the cardboard.  He’d beaten me to it.  Outside, there was silence except from the scavengers checking the trash for trade secrets, and except from the occasional siren.  Then one of the sirens, instead of fading, stopped suddenly; and the door rattled.

“It’s the police,” said Adri.  Reflexively his left hand shot out to where Ctrl+S would be, and he almost bumped his coffee.

“Which police?” I said.  “The grammar police?  The political correctness police?”

“Trademark police,” said a woman’s voice.  “I’m Officer Tuesday Monday.  This is my partner, Reginald Fiddler the Second.” 

We hadn’t locked the door after the pizza guy.

“We hear you’ve been using your trademark as a noun,” she said.  “That’s grounds for revocation.”  She winked at her partner.

“You,” said the Reginald to Adri.  “Don’t try jumping out that wall aperture.”

Adri started to reply, “You mean the —“

“Don’t say it unless you’re Microsoft.”  He winked back at her.

“Hasn’t this gone far enough?” I said.  “Look, there are three —”

“I’ll check the manuals,” said Officer Tuesday Monday.  “You check the brochures, Reg.”

“Right, T.M.”

As they helped themselves to coffee and began to read, I said, “Look, there are three kinds of trademarks:  our own trademarks, trademarks of other companies we like to be on good terms with, and trademarks of other companies we don’t care about.  We demand respect for our own trademarks, we give respect to the trademarks of other companies we like to be on good terms with, and hey, we don’t much care about trademarks of other companies we don’t care about.  That’s because the authorities like to see you vigorously defending your own trademarks on the one hand, while on the other hand they won’t slap you for using somebody else’s trademark unless —”

“What are you, a lawyer?” said T.M.

“I am not a lawyer.  As a layman, though, I get the impression there’s an asymmetry.  The only seriously punishable violation of somebody else’s trademark seems to be the deceptive use of it to advance your own reputation.  But companies seem to be encouraged to write threatening letters to anyone who uses their trademarks casually, even if there’s no punishable violation.  That’s called ‘vigorously defending’ your trademark, and it’s useful in court if your trademark is ever challenged.”

“Ooh, nice necktie in this photo,” said Reg, holding up a brochure.  “What is it, a Dior?”

“It’s a Prochownick,” I said.  “Anyway, some lawyers will tell you to use the trademark and registered-trademark symbols a lot.  It shows you’re vigorous.  And they’ll tell you not to use your trademark as a noun.  If you use it as a noun, other companies with similar products can claim that without also using that noun, they can’t describe their own products.”

“That’s why we occasionally call our product the TiePlumb computerized necktie-straightening system instead of just TiePlumb,” said Adri.  “If a competitor says ‘We have a TiePlumb too,’ we can say ‘No, you have a different computerized necktie-straightening system.  But using a trademark as a noun doesn’t invalidate the trademark, or Coca-Cola wouldn’t say ‘Drink Coke.’”

“As for the trademark symbol,” I said, “printing it next to other people’s trademarks is courteous, but you can’t get in trouble for omitting it unless you’re trying to grab some of the reputation that the trademark carries.  And you can’t get in trouble for omitting the symbol sometimes, or even most of the time, on your own trademarks as long as you do use the symbol often enough and prominently enough.  In the end, if the matter comes to court, it’s all up to a judge to decide subjectively.”

“What are you, a lawyer?” said Reg.  “And about this Prochownick necktie — do you have written permission to show it in your brochure?”

“We bought it fair and square, it’s our property, I’d say we have the right to photograph it,” I said.  “No, I told you I’m not a lawyer.”

“Couldn’t a reader infer that you work with Prochownick neckties all the time, and that Prochownick is bestowing some kind of authorization on you?  What if next week Prochownick decides to market its own computerized necktie-straightening system?  Don’t you see that you’ve infringed on Prochownick’s commercial interests?  Did you think that in a photograph or example, you can just associate your product with whatever other company you please?”

“Come on, Reg,” said T.M.  “De minimis non curat lex.  These fish aren’t worth the frying.”  She tossed me a t-shirt.  I unfolded it and read, “I am not a lawyer.”

“Cute.  I get to wear this?” I said.

“You have to wear it,” she replied.  “Thirty days.  We’ll be watching.  And careful about other people’s products.”

“I didn’t even show their trademark,” I said.