ORIGINAL: krizrox

I promised an update - here it is.

I actually did contact Monster Cable. Got a response back in a few hours. On a Sunday no less. How's that for customer service?...

Oh, man. Larry, seriously, did you actually read THE COURT DOCUMENTS that my sig links to? Or the ACTUAL CORRESPONDENCE between monster and the Mad Martian monster shop? The stuff in those links is NOT propaganda or internet rumors or conspiracy theories. It is the actual documents from one case AND the actual list of companies being sued by Monster ON THE TRADEMARK OFFICE WEB SITE.

Monster is suing, among hundreds of others:

Disney's Monsters, Inc.
Fenway Park's Green Monster
A variety of Halloween and costume companies
Scooby-Doo and the Monster of Mexico
About a billion other COMPLETELY legitimate and patently non-infringing uses of an extremely commonplace and ancient word.


Seriously, check them out. THIS BEEN GOTTEN TO THE BOTTOM OF ALREADY. It is inexcusable. They have no legitimate basis for trademark protection against people who use a common everyday word for its dictionary definition, and they certainly have no legitimate claim against usages that pre-date the existance of the company (Green Monster).

Monster maintains that a lot of what is currently posted on the internet is rubbish. There are some older trademark stories that have been blown out of proportion by the people/companies that were involved and those have been copied and pasted and mutated ad nauseum over the years.

Larry, passing along this corporate spin is misleading to the point of being irresponsible. Did you read the the links that started this thread? They are actual scans of the actual correspondence between Monster's corporate officers and the defendant of one of these shakedown cases. They are NOT "mutated" or "overblown." Read the documents. They are disgusting-- the court filings say regarding this halloween shop that never had any contact with monster "at all material times, defendant acted in bad faith, oppressively and maliciously towards plaintiff, with intent to injure plaintiff, thereby entitling plaintiff to treble damages against defendants"... and this against an unemployed guy with an unprofitable hobbyist side business. Sounds a lot like a typical home-based recording studio.

Suppose I trademark "Larry" and sue you for a portion of your business? That is exactly what Monster is doing except instead of using a common name, they have used a common word. Monster is not protecting business interests-- everything they are doing is anticompetitive, corrupt, and completely the inverse of the spirit of free enterprise. It is a parasitic, destructive endeavor designed to shake down legitimate businesses that create legitimate value and is designed to siphon off those legitimate earnings by gaming the system.

And a google search of "Cakewalk" turns up about 5 million examples of uses of the term that Twelve Tone Systems is NOT suing. If they DID decide to go and sue dance studios and the like then I'd be boycotting them, as well.

You basically got fed some vague PR line and bought it hook, line and sinker. Their vague, broad dismissal "rubbish on the internet" is itself "rubbish" from the internet.

I'm surprised that you would fall for that.

Cheers.

ORIGINAL: krizrox

...I think you might be wrong about the usage of words as trademarks (Apple comes to mind) but I'm not a lawyer (although I play one on TV ).

You *can* absolutely trademark common words, and you can and should absolutely protect your company's name, reputation, and business image by defending your trademarks, registered or not.

The tricky part of using a common word as your company name is that obviously you are not entitled to sole universal ownership over a word like "apple" or "Monster," even if you register it as a trademark, any more than you could claim ownership of a G chord or a I-IV-V progression by writing a song that contained those elements.

McDonald's for instance has gotten tangled up in a few trademark disputes with people who are named McDonald and who start a business (can you not call your business "McDonald's Auto Repair?"). The usual litmus test has to do with things like whether the auto shop was deliberately trying to capitalize on the restaurant name and/or create confusion in the marketplace (use of Golden arches or "billions served" would be a tip-off). But clearly it is possible for a Frank McDonald to set up a repair shop without diluting or fraudulently capitalizing on a hamburger chain. Similarly it is possible for people to sell apples and include images of and words referring to apples in their business name and literature without infringing on a computer company's trademark.

One very easy way to avoid having any gray area is to name your business something like "Kleenex" or "Verizon" or "Lunestra." Nobody else can claim legitimate use of a made-up word. But if you choose to pick an already common, iconic, and memorable word to name your business, then one of the risks is that there are likely to be a whole lot of other businesses legitimately using that word as well. You all get the value and benefit of having a certain amount of branding already done for you by the language itself, but you also have take steps to clearly differentiate yourself since your name is so common.

All of the above is not just established law but also common sense. Monster has unfortunately chosen not to follow either one but rather to try and hijack a common word and claim it as their own intellectual property. Larry is correct that it *is* possible to maintain a trademark of a common word, but jack is correct that Monster is not pursuing a legitimate trademark claim but rather just trying to extort money from anyone who uses the English language.

Yep... should I copyright or trademark this Dmaj chord?

Already taken. But I think Dmaj7 is available.

Great explanation of the matter at hand, yep.

ORIGINAL: yep
The tricky part of using a common word as your company name is that obviously you are not entitled to sole universal ownership over a word like "apple" or "Monster," even if you register it as a trademark, any more than you could claim ownership of a G chord or a I-IV-V progression by writing a song that contained those elements.

I had heard somewhere that the Rolling Stones managed to copyright just the starting riff of "Satisfaction", the case being that those three notes played that way could pertain to nothing other than that song. (Naturally, if true, that would be in addition to the copyright on the entire song.) I don't know if it's true, but it would be interesting to verify (though slightly OT since it deals with a copyright and not a TM).

ORIGINAL: losguy

Great explanation of the matter at hand, yep.

ORIGINAL: yep
The tricky part of using a common word as your company name is that obviously you are not entitled to sole universal ownership over a word like "apple" or "Monster," even if you register it as a trademark, any more than you could claim ownership of a G chord or a I-IV-V progression by writing a song that contained those elements.

I had heard somewhere that the Rolling Stones managed to copyright just the starting riff of "Satisfaction", the case being that those three notes played that way could pertain to nothing other than that song. (Naturally, if true, that would be in addition to the copyright on the entire song.) I don't know if it's true, but it would be interesting to verify (though slightly OT since it deals with a copyright and not a TM).

Maybe in the UK but in the US there is no provision in copyright law for such a thing. In the US (and I think in most countries) you can only copyright entire songs, not individual melodies nor phrases. Exactly what constitutes a "song" is a topic for another thread, but it usually has to include both words and music.

Interestingly, it is possible to register trademarks for certain sounds (for instance Harley Davidson has trademarked their exhaust sound, i think). How and if those will hold up in court and under what circumstances is a whole nother matter. I think at least part of the Harley-Davidson thing was a publicity stunt, like insuring a movie star's legs for a million dollars or whatever.

Either way I'm quite certain that the notes B, C#, D, C# can be and have been used in that sequence many, many times both before and since the Stones, and that any blanket claim to "own" those three notes is completely unenforceable (which does not mean that someone who ripped off the riff couldn't be held accountable, but the same could be true for any distinctive riff-- say "superfreak" or "ice ice baby" to name a couple).

The application of the laws regarding this stuff is generally a lot more sensible and less esoteric than it's made out to be. If you rip something off you are generally liable and if you don't rip something off then you are usually in the clear unless a really extraordinary coincidence has occurred. It is ultimately up to a human judge or jury to evaluate the circumstances and the material and to decide if the copyright has been violated or trademark infringed, and most of the time those evaluations are ultimately commonsense and fairly straightforward decisions.

Cheers.

In the US (and I think in most countries) you can only copyright entire songs, not individual melodies nor phrases.

The first 9 notes of Fur Elise (Beethoven) have been a trademark since 2003.

http://www.furelise.com/

That's a pretty good trick, seeing as how both Ludwig and Elise have been dead for 150 years.

Maybe I should nail the first three chords of Louie Louie while they're still available.

ORIGINAL: Roflcopter

In the US (and I think in most countries) you can only copyright entire songs, not individual melodies nor phrases.

The first 9 notes of Fur Elise (Beethoven) have been a trademark since 2003.

http://www.furelise.com/

To clarify some important points:
1. This does not affect the public right to use this public domain composition
2. Those notes are not copyrighted, they are trademarked (there is a big difference)
3. Anyone can still play, record, perform, and/or release an original recording of Fur Elise in part or in its entirety
4. Anyone can still use those notes in a musical composition or performance
5. Anyone who uses the composition does not owe any sort of royalties to the trademark holder.

It's important to understand that the "trademark" on those nine notes does NOT mean that the company that owns the trademark has exclusive ownership of them, anymore than Apple has exclusive ownership of the word "apple" or Monster has exclusive ownership of the word monster or McDonald's has exclusive ownership of the name McDonald.

If someone owned the *copyright* to that melody then nobody else could use it without permission (which neither the EU nor the US will recognize). The case cited is one where some company or whatever uses those nine notes as their jingle. Another company could use the whole thing in any other capacity, but cannot (in the EU) use that melody in a way that would infringe on the trademark (which does not even strictly mean that they cannot use those notes, just that the use is restricted to ways that do not infringe upon the trademark).

The decision to allow a company to trademark a portion of a public domain composition may or may not be stupid (I'm not sure it is, personally), but the composition is still in the public domain and the public is in no way prevented from using it.

Let me use a silly example as an analogy of how trademarks work:

Suppose Calvin Klein comes up with a perfume called "Be." They make weird black and white commercials of people staring at a beach with a voiceover that says: "To be or not to be... just Be. By Calvin Klein." They register the quote and the ad campaign as a trademark, NOT in any way that gives them full or even partial ownership of Hamlet, but merely so that you or I cannot create a perfume or some other product called "To Be" or whatever and use the same quote to try and confuse people into buying our competing product.

The critical difference between this and a COPYRIGHT is that anyone can still use the phrase "to be or not to be" in literature or everyday parlance or in corporate communications or journalism or even in certain kinds of advertizing capacities so long as it doesn't infringe on Calvin Klein's trademarked ad campaign. Excatly how "infringement* is established is a *little* gray, but it basically comes down to whether you are creating confusion in the marketplace or using the tagline in such a way that people will think your product is somehow affiliated with the Calvin Klein one.

All of the above is perfectly legitimate and reasonable use and protection of trademarks, both legal and common-sense. What would NOT be legitimate would be if Calvin Klein were to then go out and sue anyone who quoted Hamlet or staged, filmed, or published the play, i.e. if Calvin Klein tried to assert exclusive ownership of the line as though they had a copyright on it. Monster has basically been doing an even more egregious version of this by trying to effectively assert complete ownership of the word "Monster."

People sometimes tend to conflate copyright with trademark and they are not the same thing. A copyright gives you the complete rights to something and generally means that anyone who wants to use it has to get your permission or at least pay you certain prescribed royalties. A trademark refers to some kind of mark (such as a company name, logo, jingle or slogan) that you use to identify your company or product in the marketplace. You do not necessarily have any exclusive rights to that image or text or whatever, but other people or organizations are not allowed to use it to capitalize on your name or reputation. If it is a totally original word such as "Texaco" then you pretty much have exclusive rights only because it would be pretty hard to demonstrate any legitimate use of the word other than to refer to your trademark.

If you trademark a commonplace term such as "apple" then people are only prohibited from using it in ways that would cause confusion. E.g. they can still sell apple pie or candy-apple lip gloss or hard apple cider or write songs about apples but they could not make an apple mp3 player or computer and they'd probably run into trouble if they tried to make apple office furniture.

Cheers.

Elise is on all kinds of cell phones, and cheap keyboards. It's pretty much all over the place.