04/06/2012 02:25 pm ET Updated Jun 06, 2012

Reevaluating Ownership

I was on a train this morning, where I saw an advertisement -- in Spanish -- for attorneys offering to secure compensation for the victims of accidents and malpractice. The number to call was:


Setting aside the word choice someone thought appropriate for promoting legal services to New York's Spanish-speaking community, I'd like to take up the pervasive use of the trademark in our culture today.

My interest in the subject has been growing for a while, given that everywhere I look -- on the internet, in magazines, on television, and in newspapers -- the ™ and ® symbols (trademark pending and registered, respectively) abound. They're becoming as common as commas, yet with a far greater impact than often overused punctuation.

For those of you unfamiliar with what those little symbols mean, they mean that you can no longer freely use whatever comes before them. Those words, common as they may be, are now effectively the business property of someone who has chosen to link up their professional ambitions, services or products with them.

This issue came to a head for me on a recent walk in midtown. I gazed up to see a mural of Sean "Puffy" Combs promoting his new Vodka. Under the name were the words: Perfectly Smooth. With a big fat ® after them.

Are you kidding me? If I'm a baker, I can't write on my website that my cake's texture is perfectly smooth? I can't -- if I'm an auto-detailer, a plastic surgeon or a floor sander -- describe my work this way? Well, actually I can... for now. Until someone in those industries trademarks the phrase, just as "Puffy" and Hanes (the bra manufacturer) have. And from the way things have been going, it's only a matter of time before that happens in these industries and many more.

In my own field of voice, the trend to lock in language has also blossomed. There are thousands of trademark applications and successful registrations each year for companies, websites and services that include the words voice, vocal, tone, breath, breathing, body, note, notes, support, sing and singing, to name only a few. Mix them up, throw a ™ after them, and everyone else is left unable to say much of anything.

I'm not saying companies shouldn't be able to protect the unique titles and content that distinguish their brands. Service and trademark laws were created for this reason and thus, why Nike, lululemon, and Wikipedia -- deservedly so -- have been granted trademarks. These companies have earned the right to utilize the laws created to protect imagination, hard work and commitment to a corporate and cultural identity.

Yet this law, appropriate as it is, also serves to protect -- and in the process, prevent others from using -- monikers and phrases that are in no way original or imaginative. Even those who are neither in, nor yet successfully in, business may -- with little more than a simple website and a dated pamphlet -- take national and even worldwide professional ownership of words and phrases that have for centuries been used in the common vernacular.

It is interesting that the legal lockdown of conversational language is progressing while copyright law and rights are being so thoroughly challenged. While "perfectly smooth" and "margarita" are now effectively off the professional English-speaking market worldwide (as well as, in translation, in many others) entire albums, books and movies are being publicly shared without acknowledgement of or compensation for those who created them.

For some -- particularly those from younger generations -- this doesn't seem like such a big deal. It's not only appropriate, but fair, to get songs, movies and books for free. These boys and girls weren't around when copyright laws were put in place to protect the creations -- and livelihoods -- of men and women who spent entire lifetimes generating high quality literary, cinematic, theatrical and musical works for the rest of us to enjoy and benefit from. To these kids, while their laptops, iPhones and clothes are decidedly theirs, so too are the blood, sweat and tears of every composer, author, director and screenwriter that has ever lived.

Before you argue the theoretical or legal specifics of creative ownership, hear me out. I'm not saying that the rules should never change. Certainly they do and certainly we must embrace them, lest we are to be left in the proverbial and technological dust.

But we also have the right to question -- beyond our comfort and our convenience -- why the rules are changing. Is the expansion of free access to musical, literary and artistic creations in order to inspire and educate people of all ages, nations and means? Or to serve the greed that may be so easily fulfilled by technology that happily, if not legally, makes everything freely accessible?

Similarly, is the expanded use of trademark law in order to serve and protect inspired business owners and their unique ideas and brands, or to provide an economic boon for that branch of government, as well as for the lawyers that profitably interface with it in the filing and fighting of claims? Penalties for using trademarked words and phrases -- even in personal blogs -- are already on the books, including words and phrases you used long before someone chose to submit a check for $375 to the patent and trademark office in Washington, D.C.

Some would argue that the path we're on is inevitable, thanks to our historical and current cultural notions of "ownership." Land, people, animals and now language... is there nothing -- or no one -- that we are unable to intellectually convince ourselves that we have a right to own? Our inability to see ourselves as an interdependent and collective whole leaves us with a view of the world as scarce and therefore, we are determined to grab rabidly -- desperately -- for what we want. It's like the sandbox all over again, only now instead of screaming "Mine!" at each object we want, we type up on-line applications, hire lawyers and file and cease-and-desist orders.

Certainly there needs to be protections for creators to ensure that their brands -- and content -- may be fairly delivered to and received by the public. But with respect to common words and phrases, we've gone too far. Unless, that is, you don't mind your local bar advertising that their "popular tequila-based drink" is "flawlessly even."

This post has been altered from its originally published version.