Earlier this month, the New York Times ran a front page story with the wry but very misleading headlined, "If the Word 'How' Is Trademarked, Does This Headline Need a ™?" It appeared on the NYTimes.com homepage as the even more misleading, "If the Word 'How' is Trademarked, Is This Headline Legal?"
Both headlines smell Gawker-y (or BuzzFeed-y or Upworthy-y, depending on your viral website guilty pleasure.) Why? First, because like many a viral headline, it's snarky. Second, because viral-story-seeking media sites love gratuitously using the word "this" in headlines. Perhaps it's because "this" in a headline makes a story feel self-referential and meta commentary is appealing to the post-newspaper-age crowd. (i.e. We know that you know we're writing a headline here, and not just telling a story straight up, like those old-fashioned newspapers.)
Here are a few headlines I pulled in seconds from the viral soup: "This "Worst Cats" Tumblr Has Some Gross Misconceptions About Cats" (BuzzFeed); "The Code Word The Fashion Industry Uses To Justify This Nasty Practice" (Upworthy); "I Still Unload": This Man Is a "Nullo" Who Removed His Penis and Balls" (Gawker). (Emphases all mine.) I could go on and on.
Viral headline kingpin and new media anti-hero Neetzan Zimmerman, a former Gawker editor now creating controversy as the editor at Whisper, has a less subtle explanation. He recently said on The Daily Show with Jon Stewart that he advocates liberally using words like "this" and "that" in headlines because they "cause a person to stop and pay attention." Zimmerman, said by the Wall Street Journal ("Why Everyone Will Totally Read This Column") to have attracted 30 million page views a month on Gawker with his masterful viral-bait, told The Daily Show (and I don't think he was joking at all) "Nowadays, it's not important if a story is real. The only thing that really matters is if people will click on it... The most important thing is a good headline."
The Daily Show rather enjoyably mocked Zimmerman, asking the student newspaper at the University of Michigan to apply his techniques to their ordinarily traditional take on the news. A story on research into Alzheimer's disease was mocked up (and this was a joke) as "You won't believe what this university researcher is saying about her sex life."
This was very funny. Except that someone at the Times apparently decided that with the How story, Zimmerman-like baiting techniques were better imitated than lampooned. I'd argue the headline went overboard enough to stray into The Onion fake-headline territory.
We've sadly arrived at a moment in journalism where the use of headline trickery to attract large, viral audiences has become so irresistible that it's even infected the Grey Lady (my favorite newspaper and website, by the way, which I spend hours reading most days.) Yes, it was just this once so far by the Times, but the validation for the technique (and it does work -- the Times even tweeted out the headline several times that day) by the pillar or journalism bothers me.
Times editors must have assumed readers would know the headlines were a joke. But it didn't turn out that way -- hundreds of readers attacked trademark holder Dov Seidman (a business friend of mine, it turns out) in the comments section of the Times and on Twitter, for trying to own and restrict use of the three-letter word 'how' in common language, something the Times story, by Jonathan Mahler, didn't suggest in the slightest.
Times editors know, of course, that no trademark would ever require it to place a ™ on a headline, or in a story, nor would it ever restrict its use of an English word (or even a made-up mark, like FedEx or Walmart) so it would not be "legal" to use it in a headline or story. ™ is rarely used at all, in fact, except by companies who wish to put competitors on notice of their trademarks.
Trademarks only restrict language in the narrow context of when consumers, who are buying a product or service, would be confused if a competitor used the same mark. It's silly to suggest that it would be illegal for the Times or anyone else to use a trademarked word in a headline, a story, or any other kind of speech.
I feel somewhat ridiculous even having to explain that trademarks don't restrict the use of ordinary speech (or require that journalists have to mark up their writing with a ™ symbol), as it's so obviously the case. But the Times isn't Gawker, where readers know they sometimes play fast and loose with facts. As it turns out, many readers believe what they read on the front page of the New York Times, even if it is ridiculous.
Here are a few of the 283 (mostly negative) comments from the Times: "Pretty soon we won't be able to speak English without worrying about being sued." (John); "How could I possibly comment on this. Oh, wait, is "this" trademarked?" (Richard Green); "What [sic] next, they charge us royalties each time we us the word "how" in an email? (Mark), "If phrases like this can be copyrighted, eventually we will all be left speechless." (Sandy).
And from Twitter: "If HOW is under scrutiny [sic], then truly no word is safe..." (Allison Schroeder); "How using the word how could get you sued..." (Giovanni dall' olio); ""Ethical" business author Dov Seidman ( @DovSeidman? ) wants to own the word 'how'" (AueliusBlythe)
It's now three weeks later. I recently told a friend I was writing about a lawsuit over the How trademark. "Isn't that the guy who's trying to get people to pay him every time they use the word how?" was her response. Like most people exposed to the story, I bet, she saw the social media chatter and the headline, and didn't click through to read the story. Leading to all sorts of misperceptions about how trademark law works.
Even those who realized the headlines were facetious were infected by its tone. If a New York Times headline is going to mock your trademark on the front page of the newspaper, how serious a claim can you have? It's just a three-letter word, after all.
The answer to that question is not what you might think after reading the headlines, although Mahler's accompanying story was a balanced, serious piece. Seidman, the owner of the registered trademark for How, is also the CEO of LRN, a twenty-year old corporate ethics and compliance advisory and education firm. He's in a dispute with Chobani, New York's mammoth manufacturer of Greek yogurt (and a recent recipient of $750 million in private equity from TPG) for their use of "How Matters" as their new marketing slogan.
I had a meeting with Seidman (we're working on a project together), the day after Chobani debuted their "How Matters" marketing campaign in a big way with a 60-second Superbowl commercial (30-second Superbowl spots sold for $4 million this year.) A few days before the game, Chobani tweeted this: "@DovSeidman: Thanks for inspiring the world to care about 'how.' Can you help inspire the food industry, too? https://www.thunderclap.it/projects/8439-how-matters"
After clicking on the tweet's link, to a How-themed social marketing campaign that didn't mention him, Seidman was more concerned than flattered. The Superbowl commercial made matters much worse. After all, if a multi-billion dollar company wants the world to think it's the originator of How as an ethical philosophy, Seidman's business, built on a similar brand and similar philosophy, might be in serious danger of being overwhelmed.
In 2007, Seidman published a book called How, as in, to simplify the message severely, how you behave matters, in business and in life. Instead of, "Just get it done and I don't care how," Seidman argues that we should always care how and take the time to ask ourselves how. "How to ask how" has become Seidman's business -- he and his staff of 250 have spun out hundreds of How-related articles, reports, workshops and online courses (including one with a segment titled "How Matters"). Big corporations like Dell, Johnson & Johnson, Viacom, Dow, Pfizer, Dupont and Kellogg's pay very well to have their tens of thousands of employees educated on ethics by LRN, increasingly including the How framework.
Look at Chobani's ads and website and you can see they've co-opted the way Seidman uses "How" and "How Matters" -- how you do business matters, how you treat people matters, how you behave in the world matters. "How we use our profits matters," is how Chobani describes their non-profit foundation; "How we make our yogurt matters, from farm to fridge," is how they describe their yogurt (a work-around from saying they're organic, which they're not); their new company website now promotes "openness" and "working toward positive change" -- a value-based mission that goes a lot further than how to make yogurt.
"How might be a simple word, but it has a pretty strong meaning."
Who do you think said that? Seidman or Chobani? If it sounds like a pretty good crystallization of Seidman's message, it is, but it's actually the copy on a full-page Chobani advertisement, placed below a plastic container of yogurt. Confused where one brand message begins and the other one ends? That's one of the purposes of trademark law -- to prevent organizations from being confused with one another,
It's hard to believe that Chobani's ad agency, Droga5, coincidentally came to use this same phrase in the same way as Seidman. He uses "How Matters" all the time in his public appearances and, the media has picked up on it. In 2008, the Times' Thomas Friedman wrote a column called "Why How Matters" discussing Seidman's book and philosophy. In 2011, MSNBC titled a segment with an interview with Seidman "Why How Matters." Seidman's been on Charlie Rose twice to discuss How and he writes for columns for Forbes.com and the NYTimes.com on the subject. The 2011 edition of How, with a foreword by President Bill Clinton, became a New York Times bestseller. Seidman has given presentations on How at the World Economic Forum, the Clinton Global Initiative and lots of other places where trend spotters pay special attention.
When you walk into the LRN office, a giant red "How" adorns the wall. There's a bookcase with How editions translated into several different languages. And when you talk to Dov, the topic of How animates his conversations, as it's become his life's passion. So when Seidman hosted a lunch meeting with Andrew Essex, the vice chairman of Droga5 at LRN's headquarters in 2013, it's pretty unlikely that he missed the message.
Still, according to the Times story, Chobani maintains it's all a big coincidence and their ad agency independently thought up the phrase at a Thai restaurant with an open kitchen -- inspired by the idea that how you prepare food matters. Even so, a Google search would have revealed the term was already in use by Seidman. And we know before the campaign debuted, somebody in charge of the Chobani Twitter account thought it would be appropriate to acknowledge Seidman's role in popularizing How as a values-based business framework.
Unfortunately, Chobani not only adopted How as their corporate mission and part of their yogurt slogan, they also want to own "How Matters" as their exclusive intellectual property. So, an ethical question about whether a big company should appropriate a smaller company's corporate identity, also became a legal question.
How is already a pretty crowded space in the trademark world. There are currently 1334 live trademarks or trademark applications containing the word "How," including Delta Dental Plan's trademark for How to describe "oral health services" and Lux Holdings' trademark of How for wigs and toupees.
Not to mention "How Sweet It Is" (arranging social events), How I Met Your Mother (the TV show) and "How Am I Doing?" (science software, apparently somehow inspired by Ed Koch.)
Seidman's How trademark covers a few classes, including consulting services regarding ethics and business, training and education on the topic and, publications about professional conduct. All the How-related mark owners peacefully co-exist in their own business categories.
But once Chobani filed for a trademark for "How Matters," Seidman felt cornered. If he didn't file suit to defend his "How" trademark, he might very well lose rights in his particular category. The law places an affirmative obligation on trademark holders to defend their mark from confusion or the mark is eventually assumed to be abandoned. Here, people might start to believe Seidman borrowed his How philosophy from Chobani. (Not great for an ethics firm.)
Longer term, if a trademark becomes "famous" enough as defined by the law, then under the principle of "dilution," its owner is able to limit use even in categories unrelated to its core business. You can't name your wall construction business Walmart or call your website for divorced government workers' spouses FedEx. Chobani is a national brand that spends many tens of millions of dollars a year on branding. The risk they'll make How Matters a famous trademark seems real to me. A company that drops somewhere around $8 million for one Superbowl ad is pretty serious about creating a famous slogan. Seidman wants to keep using How and How Matters in lots of ways -- Chobani could one day block him from doing so.
I know from talking to Seidman that he had conversations with Droga5 trying to avoid a lawsuit (Chobani wouldn't meet with him directly), but the yogurt giant wouldn't budge. Not only were they going to keep using How Matters as their corporate identity, they were going to try to popularize the term with blitz ads. After months of trying to work it out, Seidman finally sued. Chobani then counter-sued to cancel Seidman's How trademark, arguing the trademark was too broad.
So, should a short English word like How even be trademark eligible? Are the two marks likely to cause confusion with one another, given one is just a yogurt company, but now cloaked in an ethical corporate identity? Did Droga5 copy Seidman's How message intentionally? Theses are interesting questions that the federal courts will now have to decide. It's a complicated topic certainly worthy of a New York Times article.
I just wish the headline hadn't misled readers before they even read the first paragraph. The joke spilled over to how people perceived the article -- and as happens all the time with BuzzFeed, Upworthy and Gawker -- and I think the complex story became subservient to the headline. An unfortunate trend driven by the media trying to leverage the social media.
I just hope the Times doesn't make Gawkerizing headlines a regular practice. There are better ways for them, at least, to build an audience. Gawkerized headlines don't do justice to people featured in the articles or the journalists who take the time to write serious stories. Let Gawker be Gawker. A big joke. Let the Times always go out of its ways to be honest.
Ed Sussman is the former president of Inc.com and FastCompany.com and the former executive editor of Inc. Magazine. He's now the CEO of Buzzr.com, a content tech company, and a media consultant. He's a graduate of Duke Law School and a member of the New York State Bar.