Trademarking “Día De Los Muertos”

This is a bit off topic for, but I’ve addressed intellectual property issues before, and while I mostly focus on copyright, distinguishing between copyright and trademark is an important thing to do—especially if you’re a reporter writing a story about it.

Disney’s Pixar Studios has an upcoming film based on the Mexican cultural celebration, and Disney made an initial effort to trademark the phrase Día de los Muertos and several other movie related terms and images. After the public outcry, Disney announced they were withdrawing the trademark application.

Let me make clear, Disney’s attempt to create trademarks around Día de los Muertos was a very bad idea, but only because the reaction to it was so predictable. People were bound to assume that Disney was trying to “steal” a cultural tradition. You even got respectable outlets like Language Log publishing an article titled “Is Christmas Next?” It’s purely a public relations problem, not an example of an evil corporation attempting to appropriate a cultural tradition. Not that I don’t think Disney is capable of doing bad things—it has, for example, a reputation in Hollywood as a horrible place to work—but in this case I don’t think Disney intended anything nefarious.

The problem is that people don’t know what a trademark is. They confuse it with patents and copyrights, but it’s really quite different. Trademark law is essentially a consumer protection measure that ensures that products and services are labeled in such a way that one doesn’t confuse one company’s products with another. Trademark is not “ownership,” like copyright or patent. 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. Trademark law protects a company’s profits from being poached by manufacturers of cheap knock-offs, and it protects consumers by ensuring they’re not mistakenly buying an inferior product. When trademarks are associated with widely known phrases, like Día de los Muertos, the trademark is usually limited to a specific graphical and typographical reproductions. 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.

This is a case where a company took what was legally the correct course of action, but which was an incredibly stupid thing to do. Situations like this arise when you put lawyers in charge with no checks on their authority. Lawyers do what’s best for their client under the law, not necessarily what is smart.

[Addition: Svinyard118 makes an excellent point in the comments which I probably should have included when I originally wrote this post. The degree to which Disney’s action truly is objectionable depends on the scope of the trademark claim, which we don’t really know. (We know the categories of products that fall under Disney’s claim, which are numerous and broad, but we don’t know exactly what Disney was trying to trademark.) I assumed that the claim was that the phrase “Día de los Muertos” itself is not trademarked, but that Disney was only trying to trademark specific graphical representations of the phrase, as is typically the case when someone tries to trademark a term or phrase that is in common use. It’s possible that Disney threw out a wider net, claiming that all uses of the phrase in relation to marketing products in a number of broad categories is trademarked, which would be an evil act. Such a wide claim would likely not stand up to a legal challenge, but few companies have the deep pockets needed to go head-to-head with Disney in court, so a wide claim might work.

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