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As an aside, I think the idea of jealously protecting copyright and trademarks, in this digital age, is outdated and ignorant.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.
Comments on “Using Trademark To 'Privatize The English Language'”
It is stupid, but filing the lawsuit might just be a marketing ploy. Think about it, how many people are now aware of that book?
Re: Re:
Yeah, but that still means the copyright system is broke if that’s all it is amounting to.
Re: Re:
In that case there ought to be a frivilous lawsuit charge forthcoming.
Re: Re:
I am aware of a book and an author that I will now do nothing more than malign.
There is such a thing as “bad PR”.
Re: Re:
some kind of bizzaro Streisand effect?
I agree, totally frivolous. I’m going to go copyright the English alphabet and sue every english speaking government and its citizens now.
Blame the Lawyers
I think the likely blame in these kinds of cases falls on the lawyer. A lawyer with only a passing knowledge of tm is going to be unduly worried about abandonment, and his/her experience says to make sure to cover every base. Leave no stone unturned that could provide ammo for a client to say “why didn’t we send a c&d? Now the mark is abandoned!”
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.
Re: 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.
Lawyers can only do what the law lets them do. The problem is with the law.
Re: Re: Blame the Lawyers
“Lawyers can only do what the law lets them do. The problem is with the law.“
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.
Re: Re: Re: Blame the Lawyers
The law does not allow this.
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?
Re: Re: Blame the Lawyers
“The problem is the law.” Well…who writes/makes the laws?
Re: Re: Re: Blame the Lawyers
Congress…and more than half of Congress is non-lawyers. So, perhaps the problem is that non-lawyers are writing and making the law.
I think it’s a marketing ploy. The author or the lawyer got the idea to have every use of the phrase “feel the fear and do it anyway” link back to the author and her book to draw more attention to the book.
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.
Even if people start copyrighting phrases, it doesn’t mean I and others won’t use them; just to spit in the faces of people who think it’s acceptable to start copyrighting my speech… wait. Limiting free speech.. I know I’ve heard about this somewhere…
Amazon
Just check out the Amazon reviews on her book now, it’s not pretty.
Re: Amazon
Just looked at that, HAMMER TIME (is that trademarked?)
Re: Amazon
Yeah, she severely under-estimated the power of an angry internet mob with a perceived self righteous cause.
Sucks to be her.
Re: Re: Amazon
I just looked… yesterday there were a LOT of reviews slamming this idiot woman. Today.. none of those negative reviews that slam her are there, only the bad reviews regarding the actual (lack of) quality of the book. I guess we need to slam Amazon now for trying to hide the fact that this author has opinions that suck ass.
Re: Re: Re: Amazon
I just looked… yesterday there were a LOT of reviews slamming this idiot woman. Today.. none of those negative reviews that slam her are there, only the bad reviews regarding the actual (lack of) quality of the book.
Must be another of those selective “computer glitches” that Amazon is so fond of.
What the author should have done is asked the blogger to turn the phrase into a link to either her site, or the book on amazon. Then she could have sent him a free copy of the book and maybe he would’ve helped promote it.
Re: Re:
>>>What the author should have done is asked the blogger to turn the phrase into a link to either her site, or the book on amazon. Then she could have sent him a free copy of the book and maybe he would’ve helped promote it.
Re: #9 at 7:18am
This is right on. It would have been a win/win if she’d gotten him to link to her book.
The end game is I’m going to use George Soro’s money to buy the alphabet and trademark it. then what will we do?
See how stupid this is!!!
When are we going to wake up and remember it is all about freedom!
It could all be done in 52 registrations.
Intel registered the lower case i and under the current system, that implies they could stop us all from using it. Just 51 more registrations like that and we would be reduced to communicating in numbers.
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?
Re: It could all be done in 52 registrations.
Intel registered a stylized lower case i not the actual lower case i.
Lawyers
Just reminds me of the old line: “differnece between a dead skunk and a dead lawyer” … skid marks!
sounds familiar
…do the words “You’re Fired!’ mean anything to anyone?
If you want to use the phrase, you can do so by asking permission…
“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…
Re: Re:
I sent an E-Mail asking to use it in an upcoming IM conversation ;).
Re: Re:
Except that Jeffers registered “FEEL THE FEAR…AND DO IT ANYWAY” and “FEEL THE FEAR … AND DO IT ANYWAY”, not “Feel the Fear and Do It Anyway”.
permission to speak
I had just finished hoovering the house when I found this post by googling. Maybe I should print it out and xerox a few copies to my friends.
Spider Robinson wrote a story called ‘melancholy elephants’ which nicely illustrates how over-zealous copyright enforcement can lead to artistic repression…
Re: permission to speak
I have read that story, and it is a very good look at the harm copyright and specifically copyright extension can do.
I think it’s time we think about a world without law and lawyers, it can’t be worse than what we have now.
I’m gonna write a book named “Cease and Desist” (it probably already exists tho…) and demand that any uses of it in any kind of document be followed by a (R) and a link pointing to my amazon product page… hm, while I’m at it, I’m going to demand it to be done also when the phrase is said out loud.
Re: Cease and Desist
Isn’t that a Scott Thurow book? I think he has a lawsuit here…
And her amazon death begins
Didnt feel the fear and did it anyway? Now feel the Streisand effect…
book title blamed
After my brother’s suicide, I threw his book with that title
in the garbage.
Some of you seem to be confusing “trademark” with “copyright”. These are two different things.
…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.
Re: Re:
How are we confusing the two? Enlighten us.
want more humour
check out her site. Read the “about Susan” section. She is completely clueless on reality although the rejection letter she got about her book is pretty funny. So is her husbands nickname for her.
http://www.susanjeffers.com/home/bio.cfm
and yeah I know it means hits but its truly funny.
I guess its better than calling her “cyclops”
Oprah is also suing Mutual of Omaha for using her words “Aha Moment” in an ad.
sigh.
link
Amazon Reviews
http://www.amazon.com/Feel-Fear-Do-Anyway/product-reviews/0345487427/ref=cm_cr_pr_link_1?ie=UTF8&showViewpoints=0&sortBy=bySubmissionDateDescending
The reviews are too funny. Be careful who you mess with on the net these days. Awesome.
Maybe...
Maybe if the English did privatiSe the language, we could preserve the spelling of certain English words? 🙂
She's trying for the 'streisand effect' I'll wager.
You can’t trademark the title of a book; pure and simple. Her lawyers must have gotten their degrees in the same place she did; a crackerjacks(tm) box.
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.
Confusion?
If Ms. Jeffers can enforce trademark on the title of her book, it should also follow that she should be able to demand that people stop using similar phrases that might cause confusion, such as “Feel the beer and spew it anyway!”
Book Titles can't be copyrighted
From my understanding of Trademark law book titles can’t be trademarked unless it is a specialized circumstance. I don’t see what their claim is. See a good article about it here http://www.ivanhoffman.com/protect.html
Re: Book Titles can't be copyrighted
I believe she has written several different FTFADIA books.
This phrase has existed since when...?
I must admit to confusion. I Googled the phrase and got 105,000 hits, the vast majority of which were associated with author Susan Jeffers. The author has been using the phrase since 1987. I was unable to find any reference to the phrase prior to 1987.
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.
Re: This phrase has existed since when...?
Her trademark registration at the USPTO shows that it has been in use since 1981. But her trademark registration includes an ellpsis between “Fear” and “And”.
Re: Re: This phrase has existed since when...?
I doubt removing the ellipsis would help you much if you were trying to set up a psychology practice using the phrase without the ellipsis.
Anonymous Coward's post
AC… there were no websites prior to 1987. Try going to the library.
Re: Anonymous Coward's post
I think I may have been less than clear.
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.
Re: Re: Anonymous Coward's post
Here’s a book from 1900 that uses the phrase. And it’s also mentioned in this article from 1984, although it’s not clear whether Jeffers was involved with this.
Re: Re: Re: Anonymous Coward's post
Wow…you had to go through a bunch of books to find one not by Susan Jeffers (600+ book references to this phrase, and only a couple prior to 1987 and the vast majority or all the rest refer to Susan Jeffers).
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.
Re: Re: Re:2 Anonymous Coward's post
So, what do we really know:
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.
Re: Re: Re:3 Anonymous Coward's post
Yes, what do we really know:
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.
Re: Re: Re:4 Anonymous Coward's post
Yes common. How many predate her trademark from 1987, and how many predate her first use in 1984? So far we know of one…
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)
Re: Re: Re: Anonymous Coward's post
Sorry, but the date of the book from ‘1900’ in question is a typo. Considering that it includes Mother Theresa’s prayer it is either a prophetic work, or a mistake.
For #37 who doesn’t know how to google:
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.
Oh I feel the fear, and do it anyway.
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!
I am a moron, the question is: how much of a hurry am I in?
I am a regular reader of TechDirt. I also have read and own a copy of Jeffers book. Note: It is “Feel the fear…” not “I feel the fear…”
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.
“Feel the fear and do it anyway”? Isn’t this how most of us feel about movie piracy? Maybe even without the fear part.
Perhaps Leo should’ve used a more common phrase, like “Just Do It”.
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
Titles cannot be copyrighted. You would think the lawyers would know that.
trademark versus copyright
It is my understanding words can neither be trademarked nor copyrighted. Trademarks are associated with products, words are not products unless one creates each and every word, defines them, publishes them. At a point they will go into common usage and the trademark will fail: test it and find out. Titles are not copyright material since they are NOT intellectual material.
It is a slogan, a weak attempt at creating a colloquialism.
“Feel the fear and do it anyway?” Is that proper sentence structure? “AND” do it anyway. Is it “Feel the fear, do it anyway?” Is it “I” feel the fear? Is it “They” feel the fear?” We? You? The sentence has no subject, it isn’t even a sentence. This is neither intellectual property nor trademark. It qualifies as sloganism, “Things go better with smoke?”
Titles of Books
Trademarking of book titles is, and should be, rare. The trademark office that registers them should be filtering these applications. Yes, a novelist who wants to write a book titled “Gone With the Wind” is clearly testing patience; that title would have to be specifically protected by trademarking, but society would call that reasonable– during the copyright lifetime. Other than that, the tradition is to call a book title “public domain,” and you will find multiple uses of book titles everywhere.
boogity
a local speed shop had to change it’s name causes Darrel Waltrip lawyers wont let anyone use Boogity. Which is just a word he uses on tv
I was also recently contacted regarding a postcard I have (or HAD!) for sale on Etsy with the phrase “Feel the fear and do it anyway” on it – a phrase my mother had said to me throughout my childhood.
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.