HD: Trademarking Día de los Muertos
Posted: 08 May 2013 01:47 PM   [ Ignore ]
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A bad idea, but not for the reason most people think.

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Posted: 08 May 2013 03:36 PM   [ Ignore ]   [ # 1 ]
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I agree that it is important to distinguish trademarking the phrase “Dia De Los Muertos” with attempting to own the thing itself.  I also agree that the biggest thing that made this a dumb move on Disney’s part was its tone deafness as to how this would resonate in the halls of public opinion.  But I also think that reasonable, and non-alarmist, concerns could be raised as to Disney’s attempt to trademark this phrase.  I haven’t seen the application itself, but, per the LL article, the trademark application was quite broad in scope.  In theory, the trademark, if granted, could have been used to preclude any business from using the phrase “Dia De Los Muertos” when selling food, toys, “folk art”, etc.  A toy store could, of course, sell toys or games that had a Day of the Dead theme, but they could not use the phrase “Dia Los Meurtos” in any way to market or package those products.  This is troubling to me, as that specific phrase is so closely associated with the cultural event itself that forbidding a business from using the phrase would likely have at least some consequences on would-be celebrants, as well as businesses.

By way of analogy, a trademark on “Merry Christmas” in connection with the sale of any toy, food item, clothing, or household decoration would not prevent people from celebrating Christmas, but it would certainly interfere with such celebrations.  (OTOH, a trademark of a far more specific phrase, like, “Disney’s Spirit of Christmas Holiday Greetings”, would not have such a chilling effect.)

One thing I would be curious about, though, is whether Disney qualified the trademark in some way, such as, for example, only seeking to trademark the phrase when it is written using a specific and distinctive font and style: such a limitation would greatly reduce the potential for abuse, I think, although it wouldn’t necessarily have had much impact on the predictable public response.

I do, of course, agree that Disney should have the right to try to prevent competitors from selling goods that are blatant knockoffs of, and attempts to cash in on the fame of, Disney’s upcoming movie.  But a trademark precluding the use of the phrase “Dia De Los Muertos” when selling any of a wide variety of commercial goods is far too blunt of an instrument to be a proper way of addressing that problem.

[ Edited: 08 May 2013 03:40 PM by Svinyard118 ]
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Posted: 09 May 2013 04:12 AM   [ Ignore ]   [ # 2 ]
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Good point. I’ve updated the posting to include it.

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Posted: 09 May 2013 06:11 AM   [ Ignore ]   [ # 3 ]
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Yeah, you seem to me to be way, way too sanguine about the public-spiritedness and limited ambitions of giant corporations like Disney.  You write:

Disney, if had been successful in its trademark bid, it could not have prevented people from celebrating the holiday, or collected royalties from those that did. All it could do under trademark law would be to prevent people from making knock-off products and duping consumers. ... In other words, other companies can still sell Día de los Muertos products, they just can’t label them in the same manner as the Disney movie and its associated products are labeled.

But you’re assuming 1) that their trademark application was so limited (which Svinyard pointed out and you have acknowledged), and 2) that whatever they are officially allowed to do under trademark law, they would not in fact have sicced their lawyers on anyone marketing Día de los Muertos products, relying on the chilling effect of the costs of litigation to get them to back off and leave the phrase to Disney.  I find that remarkably naive.  If Disney thought it could get away with requiring everyone in the world to pay them a hundred bucks every time they uttered “Día de los Muertos,” or for that matter “Christmas,” they would do so in a heartbeat.

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Posted: 09 May 2013 07:07 AM   [ Ignore ]   [ # 4 ]
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The only way you can trademark a common phrase is if you can demonstrate a “distinctive secondary meaning apart from its original meaning.” This would prevent Disney from interfering with any cultural uses of the phrase including toy stores decorating for the holiday. However, as has been clearly demonstrated, this story isn’t about the niceties of trademark law and I certainly agree that Disney would be more than wiling to overstep their bounds if they thought they could get away with it.

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