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January 23, 2025 49 mins

What does it mean to own an idea, a brand, a catchphrase or a concept? In part two of their continuing exploration of the weird world of intellectual property, the guys suss out what exactly is (or isn't) a trademark, and why people still find it so confusing in the modern day.

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Speaker 1 (00:00):
Ridiculous History is a production of iHeartRadio. Welcome back to

(00:27):
the show, Ridiculous Historians. Thank you, as always so much
for joining us. Let's hear it for the Man, the myth,
the super producer, mister Max Williams.

Speaker 2 (00:38):
Oh Man, You're.

Speaker 3 (00:39):
Right, guys, ready to get intellectual and with a bunch
of our property today.

Speaker 1 (00:42):
I guess, hey, hey, I will trade some marks. They
call me, Ben Bullen. Who is that Dulcet music made? Man,
it's mister Noel Brown.

Speaker 4 (00:56):
Ben, you are still my beating heart. That's the kind
thing I've heard all week.

Speaker 2 (01:02):
And I mean that.

Speaker 4 (01:03):
You know what I think of whenever I think of
intellectual property, what's that? I'm a child, we know people
often shorten it to I P and then I my
mind goes back to childhood of that old joke I
P freely you know them?

Speaker 1 (01:16):
Yeah, I got you. I always think of IP Man
because of the Kung Fu films, right yeah, when I
was I was watching those the first time. As uh
as our regular podcast reviews indicate, I am still learning
this language English. Uh. When I when I first tuned
in to IP Man, I thought it was IP Man,

(01:40):
and I thought free Man. I thought it was going
to be about a very different kind of heroes.

Speaker 4 (01:46):
Patent lawyer perhaps the dullest action picture of all time
just gets into it, right, and why don't we get
into Yeah, that's.

Speaker 1 (01:54):
What we're doing. We're getting into it. This is part
two of a continuing series. Thanks to our research associate
Max here. As you know, folks, we have been gathering
together specific assets for a heist on ridiculous history. We're

(02:16):
very excited to introduce you further to our twenty twenty
five crew. IP is something that perplexes and fascinates so
many people, and a lot of the rules and policies
and history of IP as a concept intellectual property. As
you said, nol, they are indeed ridiculous. So this is

(02:38):
part two in a continuing series. We teased it a bit.
We previously explored the origins of the idea of owning
an idea that's intellectual property. And now we're talking trademarks, man,
just do.

Speaker 2 (02:53):
It, yeah for sure.

Speaker 4 (02:55):
And I personally have always somewhat been baffled by the
difference between a trademark, a copyright, a patent, a brand,
and the fact of the matter is they're all intrinsically
kind of interrelated, but yet they have their own specific
sort of umami's, each one of them on their own.

(03:16):
Today we are talking about the idea of a trademark.
So I mean, I think what this episode is going
to serve as is going to be sort of a
good primer on a lot of this stuff, and then
we're going to come at you shortly after, maybe not
the next exact episode, but I think two episodes down
the road with a really interesting case of trademark infringement
and a storied lawsuit that went on for decades between.

Speaker 2 (03:39):
Apple Computers and the Beatles.

Speaker 1 (03:43):
Yeah, from earlier. So this is how we're going to proceed,
Similar to our earlier explorations of patents. We need to
define the thing we are looking into, and we can
define a trademark in a very silly dare I say,
ridiculous way thanks to the USPTO. Their full name when

(04:09):
they're in trouble is the United States Patent and Trademark Office.

Speaker 4 (04:13):
A bunch of scamps over there at the USPTU. I know, irascibles,
even rascals, and they define the term trademark as is
their craft, their wheelhouse.

Speaker 2 (04:24):
They want to do.

Speaker 4 (04:25):
As any word phrase symbol, design, or a combination of
these things that identifies your goods or services. It's how
customers recognize you in the marketplace and distinguish you from
your competition.

Speaker 1 (04:38):
Which is great because I was listening back to an
earlier episode where we had a slight riff on things
that are technically trademark infringement. You know, air Jorbans shout
out to everybody who heard me just a few minutes
ago say just do it. That is a Nike trademark

(05:02):
along with a swoosh, a.

Speaker 2 (05:03):
Douche trans morphers I think came up as well the
idea of a mockbuster. Ben.

Speaker 4 (05:09):
I just have to add you mentioned a slight riff
that we did. I think most of our rifts are
pretty slight, and I'm cool with that.

Speaker 1 (05:16):
I'm alright with it. I think we've got I think
we had a lot more on the horizon for that one.
But we did have to actually do our show because
otherwise it would just be you and me hanging out
and say saying stuff like bogots instead of gobots.

Speaker 4 (05:36):
Right, yeah, and I think you know your results may
very ridiculous. The story as to whether you think our
rifts are slight or eternal.

Speaker 1 (05:44):
The USPP are still learning English, thank you.

Speaker 2 (05:49):
So.

Speaker 4 (05:49):
The USPTO also says that the purpose of a trademark
is the following to identify the source of your goods
or services, one which in and of itself has a
super interesting historical precedent. And also to provide legal protection
for your brand too, and finally, to help you guard
against counterfeiting and fraud.

Speaker 1 (06:10):
Three. Technically, I would say that's two B. But whatever,
you know, we're not in these meetings with these folks.
Why true, ben, they are very similar. Why is a
patent different from a trademark? What makes a squid not
an octopus but still a cephalopod? Unlike the concept of

(06:31):
the patent, the concept of a trademark is less rigorously defined.
So if we go back to our Patent and Trademark
office friends, they will tell us.

Speaker 2 (06:42):
Quote.

Speaker 1 (06:43):
A common misconception is that having a trademark means you
legally own a particular word a phrase and can prevent
others from using it. However, you don't have the rights
to the word or phrase in general, only to how
that would or phrase used with your specific goods and services.

(07:03):
And it goes on. But let's allide this real quickly.

Speaker 2 (07:07):
Well, that quote, by the way, came from our pal
Charles Dickens.

Speaker 1 (07:10):
Yes, thank you. I will accept my baftap with grace
and won't make the speech too long. So the idea
here is really tricky. You could, for instance, this is
a fun, fun little story. You could, for instance, trademark
the concept of home on a social media platform. That's

(07:31):
exactly what Mark Zuckerberg did. But you can't own the
word home, right. You could say you can own it
for very specific for like a narrow scope of industry,
if you have a the our patent office folks, and
thank you again, Chuck Dickens, our patent office folks. Say

(07:54):
you could, for example, use a logo as a trademark
for let's say your small woodworking business. You'll witling in corpentine,
and you can. You can have a little symbol, you
can have a little phrase you can't stop other people
from like if you have a log and then a

(08:15):
thumbs up like an AX that is also a thumbs
up in the blog.

Speaker 2 (08:19):
For a logo for woodworking bed.

Speaker 1 (08:20):
Oh, thanks man, and this I got a million ideas, right,
but I've only got these two hands.

Speaker 2 (08:27):
You are what they call an idea man with two hands?

Speaker 1 (08:31):
Is that true? So this doesn't mean that someone else
can't have a logo that looks very similar if they
are not in the woodworking industry. Like what if they
just sell thumbs ups.

Speaker 4 (08:48):
Exactly, just like as a service, you pay them and
they issue you one rousing thumbs up yeah or whatever
you did.

Speaker 2 (08:55):
You know, it's just like an ata boy for hire.

Speaker 1 (08:58):
I like that.

Speaker 2 (08:59):
That's idea.

Speaker 1 (09:00):
That's all cow.

Speaker 2 (09:02):
I should write this down. It's like a task rabbit
for good vibes.

Speaker 4 (09:05):
You know, somebody comes over and pats you on the
back and tells you you're doing a good job.

Speaker 1 (09:10):
Oh yeah, you're in an awkward social event for any
of our introverts in the crowd. And you imagine you
could hire someone who just drops in, pats you on
the back and hands you with thumbs up, and it's
like a right, and then whoa, I gotta go.

Speaker 4 (09:30):
This was great with no context whatsoever, no now or
we're doing this, no question about it. The thing about trademarks, however,
is is it's kind of to your point, really all
about how you use it and for how long and
with what level of specificity. There's another common misconception, which
is the belief that choosing a trademark that simply describes

(09:52):
your good or service is all there is to it.

Speaker 1 (09:56):
Eh.

Speaker 2 (09:58):
Yeah, it's not the case. It requires. I mean, well, okay,
this is more of a strategy thing, I guess right.

Speaker 4 (10:04):
But what a good trademark really needs is to have
a novel component to it, to be in.

Speaker 2 (10:11):
Some way creative and easy to discern.

Speaker 4 (10:15):
That's why we talk about famous trademarks, you know, things
like the swoosh, the aforementioned swoosh and known. Walmart just
recently did a rebrand where they basically took their logo,
which is kind of like an asterisk on a light
blue background, and they just kind of turned on the
bold setting and made the background a little darker blue.

(10:39):
But you could argue that that is a meaningful change,
probably got someone paid a whole lot of money, and
that that logo, however simple, is associated exclusively with something
like Walmart for the purposes of retail.

Speaker 1 (10:55):
Yeah. Yeah, so shout out or tip of the cap
to target. I love that you're pointing out the tech industry.
Those properties are very big with this stuff, Apple, Microsoft, Google,
all the hits. Also, as you mentioned Walmart Lego. They're
super deep in trademarks, right, I think we're supposed to

(11:16):
call them lego bricks.

Speaker 4 (11:18):
It's so weird not to mention the fact that a
unique and creative trademark is a whole lot easier to
protect in court and to defend that. Someone else definitely
was trying to dilute my brand by using something that
is very much associated.

Speaker 2 (11:36):
But there also can come a point where that can hurt.

Speaker 4 (11:39):
You be so famous that people just use your thing
as a stand in for lots of things. And we're
going to get into that too and introduce you all
to a really cool new word.

Speaker 1 (11:50):
Yeah, get know our patent in trademark buddies are saying
the words creative and unique and effective and easier, And
I would add to that specificity, that's really what they're arguing.
To your point, Noel, if you had, you know, like

(12:10):
teenage mutant, ninja turtles, that's a very specific concept, you
know what I mean. That's not just a stylized check
mark on a sporting shoe.

Speaker 2 (12:19):
They combined four whole things.

Speaker 4 (12:21):
They're teenagers, their mutants, they're ninjas, and yes they're turtles,
which is you.

Speaker 2 (12:25):
Know, arguably unique.

Speaker 4 (12:26):
But then on the other hand, it'd be pretty easy
just to change the turtles to like raccoons toys instead
of ninjas.

Speaker 2 (12:33):
Maybe they're chefs or syamurai. Yeah.

Speaker 4 (12:37):
Also, it's a better example, thank you, much much better example.
But it just shows how tricky navigating this whole idea
of trademarks can be.

Speaker 1 (12:47):
I love the idea too. I'm picturing this as a
moment in the Ridiculous History cinematic universe. The bedraggled mayor
of New York City or insert city here is yelling
at one of his aides or the chief of police
and is saying, you're telling me there are mutant ninja

(13:08):
turtles fighting crime is vigilantes in our city, and the
police chief says it's worse than that's or their teenage.

Speaker 2 (13:16):
Oofs are the worst. That's no good, no doubt.

Speaker 4 (13:21):
But those particular teenagers, I think, you know, while getting
into little punch ups between them, they.

Speaker 2 (13:26):
Had good hearts.

Speaker 1 (13:27):
Yeah, yeah, yeah, agreed, agreed. And this is also sort
of a sideline shout out to our good friend Nick Benson,
who just is absolute gaga over tn mt Ooh.

Speaker 4 (13:42):
I'm glad you you did really well with that. I
would have muddled those letters all up. So you can
establish rights to your trademark simply by using it.

Speaker 2 (13:51):
Yeah, but that act.

Speaker 4 (13:52):
Alone, while giving you some level of protection, it does
limit that protection only to a very specific geographic region
that you are operating in as a business providing your
goods and or services.

Speaker 1 (14:08):
Yeah, So if you want stronger protections, the argument goes here,
in the United States, you will want to register your
trademark with this branch of the government or with this
department of the government.

Speaker 4 (14:22):
It's kind of similar to copyright law in that technically
you get copyright protection the moment you create a unique work,
but if you don't actually get it copywritten or registered,
you know, like with the Library of Congress or whatever,
then it's easier for someone to.

Speaker 2 (14:41):
Challenge you on that claim.

Speaker 4 (14:43):
By these days, with computers, you could certainly submit a
digital file that you've created with a timestamp, and you
could technically prove that you did it first. With trademarks,
it's even a little more kind of muddled up and confusing.

Speaker 1 (14:55):
One hundred percent. Yeah, you are not required to register
your trademark. There is no legal compulsion to do so
here in the US. However, you just made the excellent
astute point Noal. The primary advantage here for a lot
of people in registration is that timeline. It is setting

(15:16):
that chronology in place and on record. That's why a
registered trademark gives you more rights and more protection than
an unregistered one. Without getting into the weeds too far,
we can see the tendency already. If you have a
very small woodworking business with a thumbs up axe going

(15:38):
through it, and you only work in this one specific
part of Montana or North Dakota, you're probably good to go.
But as your business grows and as more and more
eyes are upon you, you might get some copycats. And that's
where you want to consider registering on a federal level,

(16:00):
which means that you will have nationwide enforceable rights. Maybe again,
it's pretty muddy.

Speaker 4 (16:07):
And just to once again give a shout out to
all of our pals at the United States Patent and
Trademark Office, a lot of this excellent information comes directly
from them, which I would argue would be probably the
best primary source on this subject, because you know, you
literally have to register it with them.

Speaker 1 (16:25):
Yeah, and this is where we get to that fun
little symbol. It's a tiny it's a tiny capital R
in a circle, which means registered, and you can use
that symbol to let the public know that this is
your trademark. So you could, for example, say shoe feet,

(16:47):
you know, registered trademark, and people would be like, why
did you spend so much time then working on shoes
that look like feet? Why would you want people to
pretend they're barefoot? And to that, I would say, this
conversation is over.

Speaker 2 (17:03):
Time as well as should be.

Speaker 4 (17:05):
You are to be the last word on shoe feet,
So I have to say I do not trust anyone
that wears those toe shoes.

Speaker 2 (17:12):
I don't find them reprehensible.

Speaker 1 (17:14):
Yeah yeah, like I said this in early recording with you,
but like our old pal Caudle Byrne often says, it
solves a problem I don't have.

Speaker 4 (17:25):
Also true, And just to add a little bit of
quick clarity, you may have also seen that subscript of
TM that can be slapped on there by anybody, because
that represents an unregistered trademark.

Speaker 2 (17:37):
Whereas the R has a lot more oomped to, it
has a lot more weight. It can only be used
legally by the owner or licensee of a registered trademark,
and can only be used in the region where that
trademark is registered.

Speaker 1 (17:52):
Yeah, so at this point we're giving you the broad
strokes of how this works as a concept.

Speaker 2 (17:59):
Yes, yeah, yeah, I was around of the broad struck side.

Speaker 1 (18:01):
Yeah yeah, yes, so you saw ip Man as well.

Speaker 2 (18:09):
I did.

Speaker 1 (18:10):
So that's a that's an ip Man move. Uh No,
Maybe we get to the the history, because it may
surprise a lot of our fellow ridiculous historians to learn
that this is a very old idea, so old in
fact that we're not sure when it began.

Speaker 2 (18:28):
It's got ancient historical precedents.

Speaker 1 (18:38):
Yeah, thousands of years millennia. Cast your memory back there,
as Van Morrison used to say, Uh, well did he?

Speaker 2 (18:45):
I don't know that one?

Speaker 1 (18:46):
He said, cast your memory back there. Lord, it's a
brown eyed girl. It's in that he says it. In
that song.

Speaker 2 (18:51):
My god.

Speaker 4 (18:52):
I do have to say, man, I heard that song
out in the world the other day and I commented
to the friend I was with that I really hate
that song.

Speaker 3 (18:59):
Ye.

Speaker 1 (19:00):
Do you like any Van Morrison songs?

Speaker 2 (19:02):
Yes, I absolutely do.

Speaker 4 (19:04):
That one in particular, though, has just been done so
to death that it doesn't sit well with me.

Speaker 2 (19:10):
I just never need to hear it again.

Speaker 4 (19:11):
But on the other hand, Hotel California stoked every time
it comes up. Not sure why I feel so differently
about these two very overplayed songs.

Speaker 2 (19:19):
Yeah, but here we are.

Speaker 1 (19:21):
Also, you know, there are more brown eyed girls alive
today than there are hotels in California, so that might
be part of it.

Speaker 2 (19:28):
Definitely, don't bother fact checking that.

Speaker 1 (19:31):
I'd be pleased. Do I think my presence on the
spectrum is working?

Speaker 2 (19:36):
There? Put your money or your mouth? Is I like it? So?

Speaker 1 (19:39):
Okay, Look, let's go to our friends at the World
Intellectual Property Organization or WEEPO. I don't know if they
think that's as funny as.

Speaker 2 (19:52):
We do, but if you choose, you could pronounce it.

Speaker 1 (19:56):
Yeah, yeah, there you go.

Speaker 2 (19:58):
You want to make out the voice? Got to do
the voice.

Speaker 1 (20:00):
You gotta do the voice. So trademarks, as our friends
of Whippo say, they do date back for millennia, but
we cannot currently date their origins with precision. And they're
talking about identification marks and the dude, they go so
deep into this. Can you give us a quote from

(20:23):
Whippo directly?

Speaker 2 (20:25):
Boy? Can I ever?

Speaker 4 (20:26):
Whippo says the following Some of the earliest forms of
identification of Marx date from prehistory. For instance, the Lascal
Cave paintings in France show bull drawings with marks on them.
Experts believe that people were using personal marks to claim
ownership of livestock long before literate societies. By the way,
Ben just got to interject here, that's also where the

(20:48):
idea of.

Speaker 2 (20:48):
Brands comes from.

Speaker 4 (20:50):
You know, you're branding something by literally burning a signature
mark of some kind into it with a hot iron
so that people know that it's yours, or people know
where it came from, which is another reason why it's
often a little bit confusing those differences and connections between
trademarks and brands.

Speaker 1 (21:08):
Yeah, yeah, exactly. You know, don't touch that cow. That's
square circle, triangle, wavy line cow. Yeah. So this dates back,
this practice of branding. I love your point there, Noel,
This dates back about fifteen thousand years ago minimum. We
also show we also see rather that in the world

(21:32):
of Egyptian masonry. In ancient Egypt six thousand years ago,
you could see stonecutters branding their stuff, you know, like, hey,
this part of the pyramid, this block is from me Jeremy.
Just the super common name in.

Speaker 4 (21:50):
Egypt mega common and a fine name, I might add,
and zipping a little bit forward in time to the
Middle Ages, trades people often used signs and marks to
distinguish goods, and this practice was sort of expanded to
become a mark of quality of certain goods and services.

Speaker 1 (22:12):
Yeah, and it's very effective for human psychology back then
as it is today. Right, we see that a trademark
exerts a lot of power on a consumer, right, the
idea being, what's our old troope. You get what you
pay for, right, So you may pay a little bit

(22:34):
more for the thing with the insignia you like, but
what you're really buying into is quality and durability. So
that's why you see water marks on fancy paper, that's
why you see I'll say it, that's why you see
insignia and branding on cars.

Speaker 2 (22:52):
One hundred percent.

Speaker 4 (22:53):
And while you might pay less for like a Pento,
it's not going to last you as long as say
a BMW.

Speaker 1 (23:00):
Yeah or Nova no Va. That's a joke. That's a
joke for is.

Speaker 2 (23:05):
That a car joke? I don't think I got I
think that went went over my head.

Speaker 1 (23:08):
Nova means doesn't go ah, So Anyway, the evidence suggests
the very first piece of what we will call modern
trademark legislation, or the precedent of that, was passed in
England all the way back in twelve sixty six under
the reign of a guy named Henry who was the

(23:32):
third Henry and king of that tribal organization at the time.

Speaker 2 (23:37):
Yes, King, our short King Henry the third.

Speaker 4 (23:40):
I'm not sure what is how it was, but it
was a set of rules that were codified called the
assize of bread and when you see it on paper,
if you're a child like like we are, you'll you'll
dinner and ale.

Speaker 2 (23:53):
Sorry, the ass size of bread and ale. Guys, I
gotta look up the word ass size. I need not
know this one is about.

Speaker 1 (24:01):
It's a decree or an edict or it's a judicial inquest.
It's also hilarious because it is one space away from
being peak comedy.

Speaker 2 (24:12):
Oh one percent. We're right on the edge of peak comedy.

Speaker 1 (24:15):
So this noll from what you and I understand here,
this as size of bread and ale was really had
we had to. We would feel bad later if we
if we didn't, if we didn't grasp the moment. So uh,
this whole thing was a a regulatory move right. If

(24:39):
you've ever seen FCC regulations or FDA is a better comparison.
It's the idea of a state power saying we have
certain standards for public goods. How much should bread cost,
how much should it weigh, how what size should it be.

Speaker 2 (24:58):
And maybe it shouldn't before of like poison or fingers. Yeah,
one would hope.

Speaker 4 (25:03):
I actually think this is pretty forward thinking for twelve
sixty six. I don't think I realized that there was
this level of quality control in industry that early.

Speaker 1 (25:13):
Yeah, this is a real spider man power and responsibility thing.
Because you get certain rights as a baker, you also
take on certain certain levels of accountability. So if you're
a baker in this time in twelve sixty six, when
this rolls out, you have to have a distinctive mark

(25:35):
on your bread, and that can show the public that
you make good bread. And if you don't make good bread, right,
if you've got dirty flower things like that, we will find
you the regulators. In theory, the regulators can protect the
public by identifying your poopy loaves.

Speaker 4 (25:57):
So during the late part of the Middle Ages, the
law offices of Conrad Schernian specialized in intellectual property law,
has this to say. Laws began to develop to allow
enforcement of marks. These laws grew out of forgery, counterfeiting,
and fraud laws. But then in eighteen and oh three

(26:18):
the powers that be over in France passed another important
as size I guess or edict known as the Factory,
Manufacture and Workplace Act, which actually criminalized counterfeiting of somebody
else's mark, somebody else's seal, and passing it off as
your own. It also prohibited kind of talking smack about others,

(26:41):
like like slander law I guess early examples of that,
and as well as wrongfully using the name of certain
regions of production, which is still pretty enforced today, something
like this. That's why like Champagne can't be called Champagne
unless it's made in the sh Champagne region of France.

(27:02):
And there are other certain types of designations for things
like butter from like regions like Saxony and you know,
stuff like that.

Speaker 1 (27:10):
Yeah, we see similar things already, as you said today.
For instance, if you have Ohio on wei and it's
not experienced in Ohio, it's just sparkling depression.

Speaker 2 (27:25):
That's good.

Speaker 1 (27:25):
Ben I don't know. If it's good, all right, we'll
keep it. But so you're laying this out perfectly. Man.
In eighteen fifty seven, France is ahead of the game.
They institute the first comprehensive trademark system. This is the
Manufacturing Goods Mark Act. Obviously we're translating from France. This

(27:47):
set up a trademark deposit system and it said this
system this rupric for how to handle these things. Said, look,
we're going to recognize use based trade and we're going
to examine every new trademark based on trademarks that have

(28:08):
been registered before. England a little late to the game here.
It takes takes about a half a century to catch up.
It's nineteen oh five when they have their own version
of this. In eighteen sixty two, however, they passed the
Merchandise Marx Act, and that's the one that says, hey,

(28:28):
if you know something is counterfeit or you know something
is misleading, you can't mess with it. You can't be
associated with it. So first they punished people right for
selling Timu products or you know something.

Speaker 2 (28:45):
By performing the five pains.

Speaker 1 (28:48):
Shut out least, see how you filed it. Also, Max
just wanted to chime in on the chat and say
thank you for the Ohio slander. You're welcome, man. We
serve at the pleasure of the public.

Speaker 2 (29:02):
Risen it up in Ohio. Oh wait, no, Ohio doesn't
have RIZ. I'm sorry.

Speaker 4 (29:05):
I'm still confused by as it is scivity. Indeed, did
you mention the Trademark Registration Acts? No, but we absolutely
must I think we should. That happened in England in
eighteen seventy five and established a much more robust system
to register trademarks.

Speaker 2 (29:22):
And I just wanted to add really quickly.

Speaker 4 (29:24):
I think we may have mentioned this when we were
talking about patents and you know, equally copyrights and the
idea of brands is all of this stuff is developed
as a way to not like stifle creativity, to not
stifle innovation, because if people thought that their hard work
and creative time and effort was just going to be
stolen by somebody else, eventually, it would absolutely tamp down

(29:47):
on any innovation.

Speaker 2 (29:48):
So these types of laws really came up out of necessity.

Speaker 1 (29:52):
Yeah. Yeah, The idea is to incentivize innovation, right, And.

Speaker 2 (29:57):
Maybe that's obvious. I just thought it was maybe.

Speaker 1 (30:00):
I think it's huge to me.

Speaker 2 (30:01):
I think it's cool that they recognize that, is what
I'm saying.

Speaker 4 (30:03):
But it was a recognition of something that would ultimately
collapse society. You know, if no one was doing cool
things that would move society forward because they were afraid
they were just gonna get ripped off, then things would stagnate.

Speaker 1 (30:16):
Yeah, exactly, and uh, being incredibly self involved. Let's fast
forward to the United States. That's where we live. Those
are the marks of which we trade. Uh, US say
you too.

Speaker 4 (30:33):
It has its moments, It has its moments.

Speaker 1 (30:36):
US A three out of five has its moments. Uh
wanted to give four stars, Kitty, that's a brutal rating.

Speaker 2 (30:42):
Five give a help review for the whole of the
United States.

Speaker 1 (30:47):
It's it's a tremendous experiment that continues today and we're
immensely privileged to be part of that. Uh. The first
federal statue. Do you like the diplomacy there?

Speaker 2 (30:57):
Absolutely? I think.

Speaker 4 (31:00):
I'm trying. I'm trying to bite my tongue a little bit.
It does have its moments here in the US of A.
But experiment is correct.

Speaker 1 (31:09):
Yeah, So speaking of experimentation and taking ingredients from the
global thought of humans and bringing them back to your
own ideological kitchen. The US whipped up its own version
of trademark law. The first federal statute dealing with trademarks

(31:31):
occurs in eighteen seventy. The Supreme Court doesn't like it.
They smack Congress on the heinie.

Speaker 2 (31:39):
That was the ip man, the ip evan, I'm right
on the bike, I love this is a character.

Speaker 1 (31:49):
Yeah. So the Supreme Court says, look, the copyright clause
of the Constitution, Article one, Section eight, clause eight does
not give you, you, knuckleheads of Congress, this does not
give you the powers that you want. And then Congress
feels some type of way about this. They respond by

(32:10):
passing the Trade Mark Act of eighteen eighty one based
on the Commerce clause, and then the Supreme Court lets
them pass fast forward nineteen forty six.

Speaker 2 (32:21):
That's a pretty significant fast forward, and.

Speaker 1 (32:24):
It's a jump. It's a jump, for sure. And this
is where Congress passes the Lanham Act La Nham, which
is still sort of our go to way as a
country for understanding trademark issues today.

Speaker 4 (32:39):
And in nineteen ninety five, another pretty significant jump, Congress
passed the Federal Trademark Dilution Act. Which protects some of
those famous trademarks we were just talking about, like the Walmarts,
the targets, the Apple computers of the world. Protects those
from uses that would serve to dilute that create distinctiveness

(33:01):
that comes along with a design or an idea like
that that has become associated very closely with a particular company.

Speaker 1 (33:09):
Yeah, exactly. More recently, Congress responded to a thing that
you and I have talked about on various shows with
our colleagues. Look, legislation always is outpaced by technology and innovation,

(33:33):
so legislation is therefore always reactive. We've joked about it before.
It's called cyber squatting, right. You see a new up
and coming business like shoefeet, and so you buy shoefeet
dot com and then you wait until the owners of
Shoefeet the company come to you and you sort of

(33:53):
ransom off that Internet domain. Congress fought against this with
the Anti Cyber Squatting Consumer Protection Act.

Speaker 4 (34:01):
But we know that there are loopholes around stuff like this,
as evidenced by I think I mentioned on a recent
episode of Either This or Stuff that I want you
to know. There's a dude that was featured on NPR
piece who has made good money buying up domain names
associated with potential combinations of politicians who might go on
to run together for insert office here. You know, like

(34:23):
so that apparently is not fully protected by this anti
cyber squad and consumer protection acts.

Speaker 3 (34:30):
Yeah, to jump in real quick.

Speaker 2 (34:31):
Uh.

Speaker 3 (34:32):
One of the best hints we still have for Elder
Scroll six, which is what you know, thirteen years in
production now where all right take place is bethes the
number of years ago bought up like a ridiculous number
of just trademarks of like like elder.

Speaker 2 (34:48):
Scrolls, this, this, this, this, because they're trying to avoid
that thing right there.

Speaker 1 (34:53):
Yeah, avoid the cyber squatting and Bethesda big fans get
at us. He huge Skyrim guys, by the ways.

Speaker 2 (35:03):
Actually kind of jump in.

Speaker 3 (35:04):
Have you guys ever played Dishonored before I finally picked
it up myself?

Speaker 2 (35:08):
Wait, it is tremendous great, I'm not yet know that one.

Speaker 4 (35:12):
I do have to say, though, Bethesda, fix your glitches,
get your house in order. I have yet to finish
Skyrim because I keep running into I keep running into issues.

Speaker 2 (35:24):
Gave up a second time.

Speaker 3 (35:26):
You just go to settings and crank it down like
one or two settings and it'll be fun.

Speaker 4 (35:29):
No, no, no, it's not about difficulty. It's literally a quest
that won't let me progress. Oh yeah, and it's just
I'm just fed up and I'm at a point where
I've I'm past a reasonable save spot. It would cause
me to have to backtrack so far that I'm just
like sorry. I do love Bethesda, those so that's why
I'm saying, you know it with with with uh love
in my heart. Please fix your glitches.

Speaker 3 (35:51):
I hate to just looking and say like, hey, Bethesa's
gets fixed by the motors. But if you look at
the mod and the mods, there's some really good patches
made by motors.

Speaker 2 (35:58):
It's pretty good fixtures.

Speaker 1 (35:59):
But on your platform and engagement anyway, Bethesda as three
inevitable stealth archers. Thank you for Skyrim. Also, you clearly
made all of us stealth archers. That's just how the
game works, Oh Paladin, all right for now? So such

(36:20):
an inside joke. Okay, So, folks, we talked in episode
one of this series about the advantages to a creator
for registering a trademark, for messing with the concept of
patents in general. We don't have to go too far
out down that road. Please tune in to our first episode. However,
we thought it would be important to get in front

(36:43):
of the next question you might be asking yourself, which is,
so this all sounds well and good guys, how do
I get a trademark? Also, after going through all this trouble,
can I lose that trademark?

Speaker 2 (36:57):
Yeah, it's a bit of a use it or lose
it kind of question.

Speaker 4 (37:00):
And with the help of attorney Brian Farcas, who specializes
in these matters, we can shed some light on this.
He mentions that they're the common law trademark rights are
for just simply using that mark, whether it be a name,
whether it be a logo, in the practice of a
business commerce within a particular community. And this is totally

(37:24):
fine for a lot of folks at a certain level
of success or notoriety, Right.

Speaker 1 (37:29):
Yeah, exactly. This is something you can do largely online.

Speaker 2 (37:36):
Right.

Speaker 1 (37:37):
If you file an application on the USPTO website or
USTO as we like to say, then you're gonna hear
from him in about ninety days, three months or so on,
and the examining forces there will right back to you
and they'll say, okay, they won't immediately, you know, smack

(38:00):
you down. They are right, they will ip man you immediately.
They will say okay, good to go, or more likely,
they'll say you need to admit some corrections, right, here's improvement. Yeah, yeah,
they'll they'll help you edit it. Registration becomes simple in

(38:23):
that regard, if everything works and the wind is at
your back. However, your your pitch for a trademark can
be challenged, and that's where things get much more complicated.
You know, you might say, hey, I've got a great idea.

Speaker 5 (38:41):
For I'm trying to think of a famous streng Oh
I've got a great idea for my Apple company, and
it's a it's a very simple drive of an Apple.

Speaker 1 (38:54):
And then a certain tech giant might say, ah, we
already called did on that one. So then you have
to go to court.

Speaker 4 (39:03):
Or a certain group of mop topped Brits might also
have issues with this use. I'm really excited to get
into that in a very near future episode, so Farcas
Brian Farcas, Attorney at law, kind of breaks down the
process of registration thusly. He describes it as allowing your

(39:24):
business to essentially scare away your competitors your mark. He
says will be listed on the USPTO's Register of Trademarks,
which allows you to use that are in the circle symbol,
and will also include it in a registry that is
used to search pre existing trademarks, because that's another part

(39:45):
of the process. If you're a big company and you're
considering making a trademark, you have to pay your internal
legal team or outside council to perform this search, which
is not like, you know, rocket science. And that's because
of all of these ways that the us PTO have
made this stuff accessible.

Speaker 1 (40:02):
Yeah. Yeah, we run into this as well in our
strange careers when like we develop a lot of shows
outside of outside of this, and one of the first
things we have to tell people when we're helping build
wonderful explorations is to do their homework. Check on the
idea of your show name, make if it sounds that great,

(40:26):
make sure someone else doesn't already have that show name,
because that avoids a lot of a lot of pain
points down the road. Look, can you should always do
your homework, do careful research to your point nol before
you even pitch a trademark. And look, we're gonna be honest,

(40:47):
it can be very expensive to have a trademark, especially
if it's challenged. You can go to Toe's Toe's own
website and see the long list of fees they have
for filing electronically versus filing via paper. It's a couple
one hundred bucks or five hundred bucks, depend on what

(41:09):
you do. But then there are other fees that get
tacked on, So we're not going to go into the
weeds of that. Just please recognize there's a reason folks
have built their entire careers on knowing what's going on.
The legal expertise.

Speaker 2 (41:26):
Is key here. Bureaucracy is quite a beast to tackle.

Speaker 4 (41:32):
So just because your trademark is registered, though, it doesn't
mean that you own it in perpetuity.

Speaker 2 (41:37):
David H.

Speaker 4 (41:38):
Schwartz, another attorney specializing in this kind of thing, says
that it requires constant vigilance to defend and protect that trademark.
The moment you let your guard down, he says, there's
a chance that someone else might swoop in and use
your trademark without permission. This unauthorized use could lead to
confusion among customers, and we can association between the trademark

(42:01):
and the company or presents. This is what we've previously
described as brand dilution.

Speaker 1 (42:07):
Yeah, yeah, and love this term that we teased earlier.
When something becomes genericized, it can be a big blow
to the company who owns that trademark. Right now, for instance,
we say, instead of searching for something on the Internet,
we say google it, right, or we say xeroxx something

(42:29):
if you're making a copy or people used to say that,
and this is a big concern. Trademark dilution occurs when
you see other forces whatever they may be, using this
in an unauthorized way. It doesn't matter whether or not
the products are actually competing. So for example, if Elon

(42:53):
Musk got a wild hair and decided to replace all
the Tesla car branding with the Nike swoosh, that would
be trademark delusion or something like that, because he's not
selling shoes, but he is confusing consumers, and that might
weaken the unique association between the trademark and the actual

(43:14):
company that owns it.

Speaker 4 (43:15):
Yeah, and can I just add to that, genera size
is like a verb. And the term that I was
excited about and I wasn't familiar with is the noun,
which is genericide. Yeah, someone had to have been being
clever with that one.

Speaker 3 (43:31):
It sounds way darker though it really does dark, but
it sounds like war crime stuff.

Speaker 1 (43:37):
It was. It was clearly a portmanteau created by a
person who also created a trademark and then got mad
when it got swiped. Right, That's why they it's such
a high stakes word. But it's a nice word. We
love this language. There are ways to protect your trademark.
Of course, you can register it. You can also so

(44:00):
like you said, Noel, beautifully put use it or lose it.
Use your trademark, consistently, monitor for infringements and take swift
action against those if they occur. And then, of course
uncle Sam wants is viig so here in the US,
remember you need to renew your trademark registration. It's it's

(44:23):
different from a patent or a copyright. We'll explore those
in a later series. Because get this, a trademark does
not have a concrete, defined expiration date. And here's what
this reminds me of before we get to know policy
wonk about this stuff, it reminds me Noll of the

(44:45):
tricky burden that milk expiration dates put on consumers here.

Speaker 2 (44:52):
Right, is it a sell by date?

Speaker 4 (44:53):
Or it's like an expiration date and what's the wiggle
room on either side?

Speaker 1 (44:58):
Yeah, come on, man, that's unfair. Or why do I
have to purposely like smell this and do a little
experiment every time I'm not ready for my straight up
black coffee.

Speaker 4 (45:08):
Well, it can also depend on like the temperature you
keep your fridge, you know. I mean, I think it's
to cover their butts more than anything. Is to say
it's gonna be fresh, definitely under whatever conditions before this
particular day. But it doesn't mean that on the next
day after that date it immediately spoils.

Speaker 2 (45:26):
That's just not how science works.

Speaker 1 (45:27):
And there's that whole thing about al capone, which is
unproven but maybe worth a ridiculous history episode in the future.
Let's write it down. The idea is that al capone
is the reason expiration dates are on milk products or
on like bottles of milk.

Speaker 4 (45:46):
Well, because you like strong armed the USDA waved up
menace them with a bat.

Speaker 1 (45:52):
I mean, he was definitely you know, he was a
narco of his day. He apparently, the story goes, this
is unproven. The story goes that his niece became extremely
ill from drinking expired milk, and so he put his own.
It became personal to him, and he lobbied aggressively to

(46:13):
get some kind of expiration dates put on milk. The
milk lobby or the dairy industry overall big Parma as
we like to call them. Yeah, they've got some vinegar
with him too. So the story is again proven that
due to Capone's intervention, we ended up with the compromise

(46:34):
of the cell by date. But I go, I don't
want to wake up, you know, and try to put
some milk in my coffee and feel like I'm taking
a gamble, you know what I mean?

Speaker 2 (46:45):
Oh no, no, no, you don't.

Speaker 4 (46:46):
And in generally I think this still by dates work
as advertised, But it's up to you to determine how
far past that are you.

Speaker 1 (46:53):
Willing to go? Yeah, yeah, what are you gonna roll
those dice? Right? So, anyhow, because the trademark does not
have a concrete expiration date, that means technically possibly a
trademark can last forever. We're getting some of this from
the legal practice of Michael E. Condudas and says, look,

(47:15):
a trademark can last for infinity as long as it
is used on a regular basis and renewed once per decade.

Speaker 4 (47:24):
Yeah, And like I said, we're gonna get into a
really really interesting and telling case of these types of
trademarks disputes. It's sort of the delicate dance that is
sort of protecting one's trademark. A fascinating case that lasted
quite a long time between Apple Computers and the Beatles
Company Apple Core, and it's really it's one for the

(47:46):
it's one for the history books, and we're going to
talk about it, I think in two episodes time.

Speaker 1 (47:51):
Yeah, we're going to talk about that very soon. We
love the ridiculosity of this. That supportman too, I have
for the speed and direction mark which something becomes ridiculous.
Oh my gosh, thank you, blush you. This is part
two of our ongoing exploration of intellectual property. We hope

(48:12):
you join us very soon for some upcoming episodes related
to this and related to indeed other ridiculous things we've
been We've been cooking a lot here in the new year,
and we can't thank you enough, fellow ridiculous historians, for
joining us. However, there is one person we can thank
enough on air. That is our super producer and research

(48:34):
associate for this episode and this series, mister Max Williams.

Speaker 2 (48:38):
Thanks Max, keep thinking lit more more there. It is huge.

Speaker 4 (48:45):
Thanks to Alex Williams who composed our theme A. J.
Bahamas Jacobs, the Puzzler, Jonathan Strickland, the Quizzer.

Speaker 1 (48:53):
Yes, Professor Rachel Big Spinach, Lance, the rude dudes at
Ridiculous Crime. We're just talking with them a little bit
off air. If you like our show, you'll love theirs. Thanks,
of course also to everybody who came up with a
great idea and dealt with all this bureaucracy to get

(49:16):
it into the world.

Speaker 2 (49:18):
We'll see you next time, folks.

Speaker 4 (49:26):
For more podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts,
or wherever you listen to your favorite shows.

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