LawFont.com

With all the current terror talk, perhaps it’s time that IP got in on the act. According to the IPKat, and from the New York Sun, the Metropolitan Transportation Authority in New York has filed a trademark application for the phrase ‘If you see, something, say something’, in order to police the phrase and those who use it. This is just wilful misunderstanding of trade mark law.

The IPKat can’t see the point, and frankly, neither can I. How on earth would such a phrase ‘distinguish’ the ‘services’ of the MTA? Surely it is a message, not a mark? And on that point, would it even be an infringement if someone else used the phrase, for the message (see Top Heavy v Killen on this…). actually, to me, this looks like yet another example of the misconceptions about trade marks.

People seem to think that trade marks are an appropriate way to ‘monopolise’ catchy or useful phrases, and make sure others can’t use the phrase. Trade marks do perform that role, in some circumstances, but the important thing about trade marks is that the mark must act as what we call a ‘badge of origin’. That is, a trade mark is meant to indicate who the products come from.

Sometimes catchy phrases start to take on this role (‘Ah, McCain, You’ve Done it Again’) – but often they don’t. I would say that this is a case where the phrase does not indicate who is providing the services. You are not going to think, when you see that phrase ‘If you see something, say something’ on a poster, that the services the poster advertises come from the MTA.

But it is amusing, given the current campaign in Australia…

You’ll be relieved to know there has been no such trade mark application in Australia. Oh, and of course it’s an opportune moment to note that a US trade mark would not affect the use of the phrase here anyway (trade marks being national, not international in scope)…