No One Said It Would Be Fun

Carla Ulbrich is an extremely talented singer-songwriter. In her song “If I Had the Copyright,” she speculates about how rich she would be were she to own the copyright on the word “fuck.”

How will I ever educate the world about intellectual property when a self-described professional smart aleck disseminates false information?

“What false information is conveyed in Ms. Ulbrich’s song?” I hear you ask.

Well, first, one cannot get a copyright for a single word. So there’s that. And if you have a copyright on a work titled “Fuck” that would not result in a royalty payment each time the word is spoken.

For example, Lady Crush owns the copyright on the song “Fuck” and no one is paying her a royalty when they articulate their feelings about the number 7 train.[1]

“Perhaps the song should have been titled ‘If I Had the Trademark’,” I hear you suggest hoping to shut me up.

‘Fraid not. Aside from completely destroying the song’s meter, having trademark rights in the word FUCK still wouldn’t result in royalty income sufficient to allow one to “retire on Brooklyn alone.”

There are currently five live applications to register the word “fuck” as a trademark.[2] If and when one of those becomes a registration, it doesn’t mean you’ll have to pay the owner a royalty for dropping the F bomb. It just means you can’t use it as a brand to sell goods or services that are similar to the goods and services in the registrations.

Truth is rarely as entertaining as Ms. Ulbrich. Such is life.

 

 

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[1] Title 17 USC §106: “Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

[2] As of October 16, 2018, there are applications to register FUCK for: alcoholic beverages; clothing; snow globes; and toys.

What Do I Do Now?

You just found out you have to change the brand you use for your business. Maybe you got a cease and desist letter telling you that you’re infringing on someone else’s trademark rights. Maybe your lawyer pointed out that your brand is generic or “merely descriptive” and that you’ll never be able to stop other people from using the same words to sell their stuff.

What now?

Step 1 – Coming Up With Your New Trademark

Rebranding is time-consuming and expensive, so you want to be certain to get it right this time. Learn what mistakes to avoid and what makes a safe, strong trademark.

Beeline®_fullcolor_h BIGGER copy.pngThe most successful entrepreneurs know what they do well and don’t do well and hire someone for stuff they don’t do well. When I started my business, I hired Axio Design to come up with BEELINE and my Happy Bee logo.

Remember not to get attached to anything until you know it’s good to go. You’re probably going to need more than one idea before you find something that’s available.

Step 2 – Transitioning To Your New Brand

There are different approaches to transitioning from your current brand to a new one. You can use do it all at once, like ripping off a Band-Aid® or, if you have the luxury to change gradually, you can transition from the old to the new, in a way that preserves the value you built into the old brand.

Either way, you should make the change an opportunity to create a splash and reconnect with your customers and market. Lemonade from lemons.

 

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SCOTUS and FUCT

Should Erik Brunetti be allowed to register FUCT for clothing?

If you seem to remember that question already being answered, you’re right, but it’s still going to be argued at the United States Supreme Court [SCOTUS] this morning. Here’s the really short version of the history of this issue.

I predicted that Mr. Brunetti’s application would move forward as a result of the Court of Appeals ruling.

I did not foresee that the Trademark Office would appeal the Court of Appeals ruling to SCOTUS. Why in the world would you appeal a ruling made on the basis of a just-made precedential finding?

Because there are new justices on the Supreme Court.

I guess we’ll see if the changes to the justices will result in a change to the ruling.

 

 

 

Hold My Beer

“I’m going to sell tube tops meant to be worn with a bra. I’m going to use the trademark  SEE MY STRAPS to sell the tube tops,” says a fictional entrepreneur.

“I think that’s a great idea,” says UNTUCKIT, a company that makes shirts meant to be worn untucked.

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“When you drop by my store in Soho, my window will show the tube tops worn without a bra, even though the whole point is to have people actually, you know, SEE MY STRAPS,” says the fictional entrepreneur.

“Bold decision,” says UNTUCKIT, “Our window display features our shirt tucked in.”

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“I’m also going to pretend it doesn’t bother me when other clothing stores dress their mannequins in tube tops with bra straps showing and a sign that says ‘Don’t be shy! Let people see your straps,'” our fictional entrepreneur boasts.

“We aren’t at all upset about this J. Crew window,” says UNTUCKIT.

“Once SEE MY STRAPS gets going, I’m going to branch out into men’s T-shirts, shorts, slacks and shoes even though SHOW MY STRAPS seems like an odd trademark for those items,” gushes the fictional entrepreneur.

“I’m sure everyone will assume you’re being ironic” says UNTUCKIT.[1]

“And then I’m going to enter the children’s clothing market. SHOW MY STRAPS isn’t really the best trademark for that. I think I’ll go with PEE MY CRAPS.”

“Hold my beer,” says UNTUCKIT.[2]

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[1] In addition to shirts, Untuckit, LLC also has applications or registrations for UNTUCKIT for sweaters, shorts, pants, shoes, belts, and hats, sunglasses and bracelets.

[2] Untuckit, LLC has filed two applications to register FUNTUCKIT for various clothing for boys and girls.