Using Trademark To 'Privatize The English Language'
from the did-you-(R)-that? dept
Jeanne sent in news of yet another overly aggressive trademark claim, this time on a blogger who just so happened to use the phrase "feel the fear and do it anyway" in a blog post. Apparently, that's also the title of some book that neither I nor the blogger in question has ever heard of -- but the author's lawyers insisted that since the title is trademarked, the blogger needed to add the (R) symbol after his quote, and include a message claiming "This is the registered trademark of Susan Jeffers, Ph.D. and is used with her permission." The blogger, Leo Babauta, has decided not to give in, pointing out how ridiculous it is to "privatize the English language" this way:I find it unbelievable that a common phrase (that was used way before it was the title of any book) can be trademarked. We're not talking about the names of products... we're talking about the English language. You know, the words many of us use for such things as ... talking, and writing, and general communication? Perhaps I'm a little behind the times, but is it really possible to claim whole chunks of the language, and force people to get permission to use the language, just in everyday speech?Well, that's for the lawyers to figure out, but trademark law is only supposed to apply to use in commerce, and it seems like a stretch to claim the blog post is use in commerce (though, since the blog has ads, the lawyers might disagree). However, the fact that the use of the phrase seems to have absolutely nothing to do with the book again raises questions about how this could possibly be considered confusing or dilutive of the mark. Either way, Barbauta makes a point we've been trying to make here for a long, long time:
As an aside, I think the idea of jealously protecting copyright and trademarks, in this digital age, is outdated and ignorant. You want your ideas to spread, and you should encourage people to spread your ideas, not put up all kinds of boundaries and restrictions and obstacles to that being done. This blog, for example, is Uncopyrighted, and will always be free, because I want people to spread my posts and ideas. I think it's actually good for me as a writer, and it's (not insignificantly) better for the writing community in general if we can share each others' work freely. I'm hoping that with posts like this, and the good work of thousands of other like-minded people, the old mindset of fencing off ideas and language will slowly change.Exactly.
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There is such a thing as "bad PR".
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I agree, totally frivolous. I'm going to go copyright the English alphabet and sue every english speaking government and its citizens now.
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Blame the Lawyers
This doesn't mean it's a good business decision. It does mean, however, that the answer may not lie in TM policy so much as lawyers' attitudes.
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Re: Blame the Lawyers
Lawyers can only do what the law lets them do. The problem is with the law.
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Re: Re: Blame the Lawyers
The law does not allow this. There is nothing under the law which forbids the use of langauge in this way. This is merely about the author trying to get free publicity to her book.
So the problem is with the clients. A lawyer can only act upon his client's wishes. A client should say no to this sort of BS.
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Re: Re: Re: Blame the Lawyers
Well, if the the doesn't allow the filing of these suits then I supposed the lawyers involved will be disbarred (at the very least) for violating the law. That should make enough of an example of them to keep other lawyers from doing the same in the future. Still, I would have thought the lawyers involved would have known the law here. But hey, you're the expert, right?
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Re: Re: Blame the Lawyers
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Re: Re: Re: Blame the Lawyers
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There is absolutely no trademark claim to bar the use of the phrase "feel the fear and do it anyway" as a statement. There's simply no consumer confusion when its used as a statement, because there's nothing to be confused about.
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Amazon
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Re: Amazon
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Re: Amazon
Sucks to be her.
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Re: Re: Amazon
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Re: Re: Re: Amazon
Must be another of those selective "computer glitches" that Amazon is so fond of.
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Re: #9 at 7:18am
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See how stupid this is!!!
When are we going to wake up and remember it is all about freedom!
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It could all be done in 52 registrations.
There are over 250,000 words in English, so there are a lot of 7 word phrases, however, this isn't the 25 monkeys each typing randomly at a keyboard problem but a convergence of expression. If we don't require context when judging copyright rights, then we will, in my lifetime, be out of things we are allowed to say.
Then again, maybe we can invoke prior art to defeat them?
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Re: It could all be done in 52 registrations.
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Lawyers
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sounds familiar
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“The phrase, Feel the Fear and Do It Anyway®, is Susan’s registered trademark. If you wish to use this phrase for any purpose whatsoever, you are legally required to seek permission from Susan. You can do so by contacting admin@susanjeffers.com.”
Maybe it's time for everyone on the Internet to send her an email asking permission to use the phrase on a random blog or twitter...
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permission to speak
Spider Robinson wrote a story called 'melancholy elephants' which nicely illustrates how over-zealous copyright enforcement can lead to artistic repression...
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Re: permission to speak
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Re: Cease and Desist
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And her amazon death begins
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book title blamed
in the garbage.
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...though I surely don't support the author or her lawyers on this. They are trying to use trademark law, but don't seem to understand it.
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want more humour
http://www.susanjeffers.com/home/bio.cfm
and yeah I know it means hits but its truly funny.
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Amazon Reviews
The reviews are too funny. Be careful who you mess with on the net these days. Awesome.
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Maybe...
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She's trying for the 'streisand effect' I'll wager.
PhD indeed, and the best she can do is write another two-bit self-help book nobody wants to read. What a waste of an education.
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Confusion?
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Book Titles can't be copyrighted
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Re: Book Titles can't be copyrighted
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This phrase has existed since when...?
Yes, the phrase is trademarked. Even though the registration is fairly broad, it is only associated with discussion of self help, psychology, and several other related subjects. Thus, if a character in a science fiction book said to someone, "feel the fear and do it anyway," it does not appear that the usage was be infringing.
With only 105,000 Google hits, and the vast majority being Susan Jeffers, and 100% of the hits I looked at dating after 1987, I conclude that the phrase was not "common" prior to 1987 and it may be that it has entered the English language because Susan Jeffers (who claims to have made the phrase up) either made it up or popularized it.
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Re: This phrase has existed since when...?
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Re: Re: This phrase has existed since when...?
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Anonymous Coward's post
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Re: Anonymous Coward's post
When you search for things with a historical reference, you typically find them. There are tens of thousands of references that predate 1987. Try looking up internal combustion engine and you will find all sorts of information going back 120 years or so - even more when looking at things leading up to internal combustion engines. Yet, not a single reference extending before 1987. If Ms. Jeffers created the statement, then the comments stating that the sentence has been around "forever" are wrong. Further, the statement may well be "well-known," though I have never heard the phrase until today, because of Jeffers.
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Re: Re: Anonymous Coward's post
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Re: Re: Re: Anonymous Coward's post
So, what do we know:
o It is not, contrary to the assertions of several people, a "common" phrase.
o Prior to Susan Jeffers' use in her fields of expertise, it apparently had not been used in a very long time in books.
o Susan Jeffers' trademarked use of the phrase, though broad, is still limited to certain fields (pretty much a requirement for trademark). Ergo, the phrase has not been "roped off" from the English langage.
o Others have used the phrase in the comments on this blog, and I believe the usage is protected because it is criticism. Further proof the phrase has not been "roped off" from the English language.
My conclusion is that someone liked the phrase because they thought it was catchy, and possibly because they saw it somewhere - very likely as a result of Susan Jeffers' trademark, and they are not happy that Jeffers' already has a trademark.
While I am slightly sympathetic, neither am I ready to permit any cola company to use "Have a Coke and a smile" in their advertising, because if the advertising is not for my favorite beverage, it is quite misleading. And sorry, but Kleenex is a brand, not a generic name for facial tissues (though people often use the word as a generic term in day-to-day use - that does not make the usage correct, it just shows their ignorance).
Trademarks are for a specific purpose, identification. Susan Jeffers has worked very hard promoting brand identity through the phrase "I feel the fear and do it anyway." She took an obscure phrase and has done an innovative job of wrapping her business around it. More power to her.
As yet, she seems only interested in making sure that people know that she has brand identity (a trademark requirement if you do not wish your phrase to become generic, which will ultimately lead to the loss of your trademark - regardless of what some people might want you to believe) as opposed to money. It seems to me that she is doing many of the things Mike Masnick has advocated in this blog.
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Re: Re: Re: Re: Anonymous Coward's post
o It is not, contrary to the assertions of several people, a "common" phrase.
I just did a Google search on the term, excluding "Jeffers"
http://www.google.com/search?hl=en&safe=off&num=100&q=%22feel+the+fear+and+do +it+anyway%22+-Jeffers&btnG=Search
and came up with 56,300 hits. Even excluding some still related to Jeffers, that looks like pretty common to me.
o Prior to Susan Jeffers' use in her fields of expertise, it apparently had not been used in a very long time in books.
It seems that it had been in use for at least 100 years before Susan Jeffers decided to latch on to it.
o Susan Jeffers' trademarked use of the phrase, though broad, is still limited to certain fields (pretty much a requirement for trademark). Ergo, the phrase has not been "roped off" from the English langage.
She is trying to keep people from using the phrase even when it has nothing to do with books. Ergo, she is attempting to "rope off" the phrase from the English language.
o Others have used the phrase in the comments on this blog, and I believe the usage is protected because it is criticism. Further proof the phrase has not been "roped off" from the English language.
The commenters here are pretty much all anonymous so she'd have a pretty hard suing them, wouldn't she? Not that she wouldn't try if she thought she could though, just ask Leo Babauta, the blogger she threatened in the article. Besides, with 56,300 Google hits to work through already, it might take her a little while to make it through the whole list.
It seems to me that she is doing many of the things Mike Masnick has advocated in this blog.
Oh yeah, Mike always advocates filing these kinds of lawsuits whenever possible. /sarcasm
My conclusion is that someone blah blah blah...
My conclusion is that someone is here trying to do a spin job for her and not even doing a believable job of it.
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Re: Re: Re: Re: Re: Anonymous Coward's post
o It is not, contrary to the assertions of several people, a "common" phrase.
I just did a Google search on the term, excluding "Jeffers"
http://www.google.com/search?hl=en&safe=off&num=100&q=%22feel+the+fear+and+do +it+anyway%22+-Jeffers&btnG=Search
and came up with 56,300 hits. Even excluding some still related to Jeffers, that looks like pretty common to me.
Yes common. How many predate her trademark from 1987, and how many predate her first use in 1984? So far we know of one...
o Prior to Susan Jeffers' use in her fields of expertise, it apparently had not been used in a very long time in books.
It seems that it had been in use for at least 100 years before Susan Jeffers decided to latch on to it.
The criteria for being able to use a word or phrase as a trademark is that it is not already in common use nor is it already used as a trademark. It was used in an obscure book from 100 years ago that is no longer in print. Further, there is only one known use other than that book prior to 1987, and that may have been by Jeffers. In other word, you got nothing.
o Susan Jeffers' trademarked use of the phrase, though broad, is still limited to certain fields (pretty much a requirement for trademark). Ergo, the phrase has not been "roped off" from the English langage.
She is trying to keep people from using the phrase even when it has nothing to do with books. Ergo, she is attempting to "rope off" the phrase from the English language.
Her trademark is related to self-help, psychology and several related fields. I can point you to the trademark if you like. Is it "roped off" from the field of psychology? Well, since it did not exist in the field of psychology prior to her use, what harm that? There is a very real risk of confusion since the phrase is the heart of her branding strategy.
o Others have used the phrase in the comments on this blog, and I believe the usage is protected because it is criticism. Further proof the phrase has not been "roped off" from the English language.
The commenters here are pretty much all anonymous so she'd have a pretty hard suing them, wouldn't she? Not that she wouldn't try if she thought she could though, just ask Leo Babauta, the blogger she threatened in the article. Besides, with 56,300 Google hits to work through already, it might take her a little while to make it through the whole list.
First, it is easy to get identities revealed when the use is in commerce, but these are not. Criticism is still protected. As for teh 56,300 hits, again, the vast majority, IF NOT ALL, link either directly or indirectly to Jeffers. She and her attorneys really have little work to do.
It seems to me that she is doing many of the things Mike Masnick has advocated in this blog.
Oh yeah, Mike always advocates filing these kinds of lawsuits whenever possible. /sarcasm
What lawsuits? Are you able to READ? It was an attribution request. Good Lord, how did we go from a request to a lawsuit? Seems like your sarcasm has affected your brain. Mike has always encouraged innovation. Jeffers has developed a strategy around a cute phrase that is quickly becoming well-known with her name. She is selling goods and services widely. When you create a strategy that appeals to customers, it is innovation, smart ass.
My conclusion is that someone blah blah blah...
My conclusion is that someone is here trying to do a spin job for her and not even doing a believable job of it.
My conclusion is that you do not have a point and dislike that someone was innovative and creative. Come back when you have a readl point.
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Re: Re: Re: Re: Re: Re: Anonymous Coward's post
Hah, that's funny! The World Wide Web was started in 1989, no wonder there are no hits on sites from 1984 or before!
It was used in an obscure book from 100 years ago that is no longer in print. Further, there is only one known use other than that book prior to 1987, and that may have been by Jeffers.
No longer being in print really means nothing. It still clearly shows a prior usage. And I suspect there are plenty of others that would show up in something more thorough than a web search.
What lawsuits? Are you able to READ? It was an attribution request.
If there was no implied threat of a lawsuit then why did Jeffers have a lawyer send a letter rather than simply sending an email herself? An email would have been quicker, easier and cheaper. I think the use of a lawyer made the implied threat quite clear.
When you create a strategy that appeals to customers, it is innovation, smart ass.
Sending legal letters from lawyers is hardly "innovation".
My conclusion is that you do not have a point and dislike that someone was innovative and creative.
Again, I have a hard time seeing what is so "innovative and creative" in a legal threat. (Lawyers might disagree)
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Re: Re: Re: Anonymous Coward's post
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Trademark and Copyright
http://www.uspto.gov/web/offices/tac/doc/basic/trade_defin.htm
http://www.uspto.gov/ web/offices/tac/doc/basic/
http://www.copyright.gov/
You want to know the difference? Then read for yourself.
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Will I feel the fear, and do it anyway?
Yes, I think I might feel the fear, and do it anyway.
Susan Jeffers, here's my trademark: shove it!
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I am a moron, the question is: how much of a hurry am I in?
If I were to have read the blog in question, I would have immediately made the mental link back to the book and presumed the blogger was making reference to it.
I just went and read the blog post in question. He is posting on the exact same topic of Jeffers' book. While I have no reason to doubt he came upon the phrase in question independently, I do see a legitimacy in her trademark. She did give her book that title, and her book was here first.
Maybe if she claimed copyright then that would be tenuous (I don't know), but the trademark claim seems pretty strong to me.
Also note: I think both the book and the blog post offer very good advice.
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Perhaps Leo should've used a more common phrase, like "Just Do It".
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Perhaps I'm a little behind The Times, but is it really possible to claim whole chunks of the language, and force people to get permission to use the language, just in everyday speech?
There, fixed that for you
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trademark versus copyright
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It is a slogan, a weak attempt at creating a colloquialism.
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Titles of Books
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boogity
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I responded to the email explaining that I only have ten of these postcards for sale (because as a small start up that's all I could afford to print) and once those were sold I wouldn't print anymore.
I was told that there would be no exceptions and I could only sell them if I re-printed them with the trademark at the bottom.
I was gutted!
I think it's terrible that someone can 'claim' language like this and stick their name on other people's products.
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