Trademarks, the Internet, and Legal Bullies

As the maintainer of a well-known web-based dictionary, I get plenty of letters from people who want a change to the dictionary. In some cases, it is an organized attempt to change people's thinking. Some ethnic groups object to their depiction, and ask for a change. In one case, a well-known professor gave students a grade based on their ability to get online dictionaries to mention him.

The most troubling attempt to influence dictionaries is practiced by trademark lawyers. The law says that trademarks must be defended - the trademark owner must ensure that their trademark is used to identify their product and does not become a generic term or one that is also used to describe the competition, or else the trademark will be lost. So a polite letter asking us to acknowledge that this word used in this sense refers to a trademark is normal and necessary. I get lots of those.

Unfortunately, some trademark lawyers are going beyond the call of duty to send unreasonable demands and veiled threats to people who use the words in a way they don't like. I've had insistent requests to change a definition to a marketing slogan, to put in funny trademark characters, to identify the name of the current owner of the trademark, and to add and change spellings.

Some lexicographers refuse to cooperate. They say that they are reporting documented common usage, that they are passive observers if people are using a word in a generic sense or misspelled, and that they are not responsible for protecting other people's trademarks.

I suspect that most people whose web sites use a trademarked word just cower and make the requested changes when they get The Letter, fearing legal retribution. But there is a line between protecting the trademark and promoting the brand. These lawyers' letter often simply misrepresent the law. If your site says that so-and-so causes cancer, you are not implying that you speak on behalf of the owner of the so-and-so trademark. It's not trademark infringement.

Protecting trademarks on the internet can turn into a huge billable make-work project for lawyers. The line between published works and private conversations is less clear. There is also a greater chance of having your web pages read in other jurisdictions for obvious reasons beyond anyone's control, and to inadvertently infringe other people's trademark law. U.S. trademark laws, including their unique "dilution" rules make the internet a dangerous place for free expression everywhere.

Trademarks are ofter protected on state-by-state basis so even if what you do is perfectly legal in Florida, you could be forced to appear in court in Alaska because of a word you used. What is really needed is a separate lawyer-free Internet jurisdiction when commons sense prevails. Plus some real consequences against the "bullying" law firms who misrepresent the law to site owners.

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