Marks For The Marketplace

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Millions of readers have been pleasured by the writings of John Steinbeck, but there was no joy in the Atlanta headquarters of the Coca-Cola Company when the Pulitzer-prize-winning novelist’s The Wayward Bus reached the executive suite.

”‘You rather have a coke?’ ” asked the traveling salesman who was trying to move in on the blonde at the bus stop lunchroom.

”‘No. Coffee’ ” she replied. ” ‘Cokes make me fat.’ ”

”‘Got any coke?’ ” another character asked.

”‘No,’ ” said the proprietor. ”‘Few bottles of Pepsi-Cola. Haven’t had any coke for a month. It’s the same stuff. You can’t tell them apart.’”

It was bad enough from the Coca-Cola point of view to violate the company’s famous trademark (which covers both Coca-Cola and Coke) by using the lower-case “c” instead of capitalizing the name. The error was compounded when Steinbeck also used the plural form. Such usages denigrate a trademark by implying that it is not unique but represents a class of goods. Then, to cap it all, there was that untoward comparison with Pepsi-Cola.

Nor could the General Foods Corporation have been any less distressed than the Coca-Cola management if its officers read the description in The Wayward Bus of what was on the third shelf behind the counter of the luncheonette. For there were stacked “individual boxes of … grapenuts, and other tortured cereals.” They caught the eye of Mr. Pritchard, a businessman and one of the passengers on the bus. After ordering breakfast for his wife and daughter, he said, ” ’I’ll have grapenuts and cream.… ’ ”

Grape-nuts is, of course, a historic, valuable, and diligently guarded trademark of General Foods. The risk it was exposed to by the wayward novelist is highlighted by a remark that Mrs. Pritchard made when she felt a headache coming on. ” ‘Elliott,’ ” she said to her husband, ” ‘see if they have any aspirins, will you?’ ” They did, and the woman behind the counter obligingly tore a “cellophane bag” off a display card and handed it to the indisposed lady.

What is at issue here, then, is that Coca-Cola, Coke, and Grapenuts must be capitalized and handled carefully with respect to property rights, while it is perfectly correct to lower-case aspirin and cellophaneto which may be added zipper, thermos, linoleum, mimeograph, yoyo, and literally scores of other once-proud names that have slipped into the English language and have become merely the common description of a whole category of products but no lonsrer of any particular one.

 
 

The story of this fall from grace begins with the legal character of a trademark and a glance at social and economic history. A trademark is, quite simply, a mark of somebody’s trade. It is defined today in U.S. statutory law as including “any word, name, symbol, or device, or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” The mark is an indication of origin, of quality, or at least of uniformity, and often carries the suggestion of inherent characteristics that may give the product an edge in the marketplace. For example, Halo, the name of a shampoo, conveys the pleasant idea of soft highlights in the hair; Talon suggests that a particular slide fastener will do well what it is supposed to do in gripping and holding.

“Brand” or “brand name” are colloquial terms often used as synonyms for “trademark,” but “trade name” means something quite different. A trade name is the name of the maker, not of the product. General Motors Corporation is a trade name, Cadillac a trademark. Jell-0 is a trademark, but General Poods, owner of the Jell-0 mark, is a trade name. Most trade names would not pass the trademark examiner at the Patent Office as being registrable. But there are exceptions. Johnson & Johnson is both a trade name and a trademark, and the “Celanese” portion of Celanese Corporation is a trademark.

 

Trademark protection, since it provides the legal basis for fending off unfair competition, is a valuable right. Without it, our modern industrial society would be in chaos and the consumer at the mercy of a host of con men. The encroachment is called infringement and was well defined by Judge Augustus N. Hand in 1952. When a manufacturer of children’s shoes and related items introduced the mark Gro Pals after R. H. Macy & Co., Inc., the big New York department store, had long used the marks Gro-Shoe and Gro-Sock, the U.S. Court of Appeals granted Macy’s an injunction stopping the sale of Gro Pals. In delivering the court’s opinion Judge Hand said, “Infringement is based on the existence of similarity such as would cause confusion of any appreciable number of ordinarily prudent purchasers as to the source of the goods,” and he added that it was hard to avoid the conclusion that “there was a deliberate purpose to obtain some advantage from the trade which Macy had built up.”

Infringement can be stopped even if there is no intention to confuse the purchaser and even if the products of the two firms are not competitive, provided, in the latter case, that the newcomer is clearly trying to borrow the advertising and good will of the trademark owner. It would be folly, for instance, for a manufacturer to come out with a Kodak bicycle.