Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

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Tyranny of Trademark Law - Part 8 (Monopolizing Language Revisited)

Debra Opri has apparently joined the growing rank of attorneys who are smoking crack when it comes to trademark law.

Let's get one thing clear: Trademarking a phrase for general use is a flat out unconstitutional violation of free speech. Are Opri and Birkhead honestly arguing that is somebody uses the phrase “Goodnight my sweet baby Anna” in a book, film, or any other creative work, then that person must pay off Birkhead or risk being hauled into court??

Trademark serves a useful and legitimate purpose when it is used to identify a specific good or service. For instance, if Birkhead sold baby cribs with the brand name “Goodnight my sweet baby Anna”, it is perfectly legitimate to prevent other crib competitors from using that name. This has nothing to do with principles of monopoly. It is simply a necessary tool for consumer protection.

With that said however, it is insane to try and claim a general trademark over the phrase itself when it is divorced from a pre-existing good or service. At that point, it is no longer a tool to identify a commercial good, it then becomes a naked and virulent attempt to try and privatize language itself through a government enforced monopoly. Anyone claiming to be an attorney who endorses such nonsense out to be shamed out of the profession.

Coke is a legitimate trademark to identify a cola brand. Are Opri and her ilk seriously arguing that I have to get permission from the Coca-cola company if I write a book where I have a character say, “I'd like a Coke, please.”? Surely you see the ridiculous implications here. The Supreme Court has criticized this attempt to abuse trademark law by claiming it as "mutant" form of copyright protection. However, this hasn't prevented special interests from trying to re-enforce their monopoly over language and communication.

Paris Hilton trademarking “That's hot!”? Pat O'Reilly trademarking “Three-peat”?? Donald Trump trademarking “You're fired!”??? These people have simply wasted their time and money by listening to attorneys who simply don't know what they are talking about.

Meanwhile, if there are any artists out there who can demonstrate that they have published creative works using these “trademarked” phrases, please let me know. I will be happy to publicize your work on this blog and provide free legal defense if you are threatened.

Part 7 of Tyranny of Trademark law here.

[Update as of 4-2-07]: Larry Birkhead has issued a fascinating message on his webpage over at LarryBirkhead.net -

TRADEMARKS: I have never requested a trademark, signed or filled out any paperwork on a trademark relating to Anna Nicole Smith, and the saying "Goodnight My Sweet Anna Baby." The form was filled out by another individual on my behalf. The form was not reviewed or approved by me. The media is reporting that they have seen a copy of the form, please send me one as I have asked for a copy and never have received it. It does not have my signature or authorization, I am far too busy working on my fight for my daughter Dannielynn, to worry about things like trademarking sayings for use in movies, etc.

**In other words, I will seek to have this trademark withdrawn or cancelled on the grounds it was not approved by me.**

So Birkhead is claiming that this was done "by another individual on [his] behalf" - apparently without his consent or approval. Was he referring to attorney Debra Opri? It's impossible to know for sure. However, we do know that Opri was fired by Birkhead recently and that Opri has engaged in Gloria Allred-style media saturation overreach in trying to promote her own name. This would certainly fit the profile of an overzealous entertainment attorney who tries to make outrageous claims on intellectual property to the detriment of the client. But I'll wait for more facts to come in.

Whoever tried to make that trademark registration, it is utterly scandalous even by the standards of the Anna Nicole Smith saga.


This reminds me that all we need are simply registries that record truths.

A register to record the authorship of the novel association between a name/symbol/phrase and a particular product/company/entity - and a law against misattribution/misrepresentation, using this register in arbitration.

A register to record the authorship of a book or other artwork - and a law against misattribution/misrepresentation, using this register in arbitration.

A register to record the authorship of an invention, business method, recipe, or algorithm - and a law against misattribution/misrepresentation, using this register in arbitration.

What matters is the truth of 'who did it' - not the suspect commercial incentive of a monopoly on use.

There is a natural monopoly on truth.
There is no natural monopoly on exploitation, reproduction, and development of public knowledge.

"Trademarking a phrase for general use is a flat out unconstitutional violation of free speech." Leaving aside the questionable nature of the term "trademarking", what does that even mean? What's "general use"? Where's the free speech issue? Nothing in trademark law supports Opri or Birkhead's position. Further, you argue Paris and the Donald are attempting to claim rights in those phrases "divorced from a pre-existing good or service." I'd first note that there's no requirement the goods or services be "pre-existing." That's what intent to use applications are for. But leaving that aside, where's your support for your assertion that those phrases are so divorced?

Trademark law, like all fields of IP law, is rife with abuse. I've skimmed over all your Tyranny of Trademark posts, and for the most part I'm in full agreement with your general points regarding the overreaching of mark owners. In fact, I offered my services to the beleaguered stitch 'n bitch people (I'm also good friends with Ms. Robbins of the "For Dummies" situation -- that's a good story). The problem, as I see it, is that mark owners generally don't understand what they've gotten themselves into. They have a fundamental lack of understanding about how the system is intended to work, what a trademark is for, and what their rights are. All they know is they've got this mark and, perhaps, a registration number, and they're ready to roll. So you get ill-advised C&D's that inevitably result in blowback, and ultimately the mark owner sees the error of its ways and relents.

"...it is insane to try and claim a general trademark over the phrase itself when it is divorced from a pre-existing good or service." It's also legally pointless. There is no "general trademark." They can claim whatever the heck they want, it doesn't mean it impacts the rest of us. Why concern yourself with what some attorney who is apparently not well versed in trademark law has to say when it is clearly at odds with reality? Let Mr. Birkhead waste his money on a federal registration, which will inevitably be abandoned somewhere down the line. That has zero to do with free speech or the failures of trademark law, and everything to do with bad legal advice and an ego overcooked by the white hot spotlight.

Love the blog, great discussion.

Matthew - Good to know that somebody is actually reading the whole Tyranny series. ;-)

You write, "where's your support for your assertion that those phrases are so divorced [from pre-existing goods or services]?" My support stems from the media accounts themselves. The news accounts claim that these people are trademarking the "phrases" themselves. Naturally, you can't do that. You can only trademark a phrase as applied to a good or service (i.e., You can trademark a mug with the phrase "You're Fired!" on it. But that shouldn't prevent somebosy else from using that same phrase to brand a line of fireplace settings, etc. Obviously if they used the same color and font in the wording, then there is a different issue there. We are only talking about the underlying words themselves - divorced from any other marking styles.) Is it possible that the media accounts got it wrong? I suppose. But I can only respond to what they write.

I think maybe you are misinterpreting my comments in one respect. I am not suggesting that actual Trademark law supports what Birkhead is trying to do here. When I refer to "Trademark Law" - I am speaking not only about the actual law, but also the legal culture which distorts it. I would maintain that such culture absolutely poses a threat to free speech, even if the written law might not.

But aside from that, the specific free speech issue regarding the actual state of Trademark law can be found here:


I hold that trademark "dillution" is an inherently illegitmate legal concept - unless it is also coupled with actual or likely "confusion". But perhaps we simply disagree on that point.

The "smoking crack" link doesn't work.
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