Common words can be trademarked if they are used to refer to something
quite other than what is meant in a common sense way by those words.
The position taken in this post to nettime is that what @Radical Media
does is far enough away from the activities of those who see themselves
within the radical media community that it would have been legitimate
for them to trademark the phrase. Trademarks are geographically
specific, but given this company's clients it may be that they do have
global reach for the trademark.
An entity that trademarks common words for use to refer to something
other than what is commonly meant by those words does NOT have the right
to prevent others from continuing to use those words in their common
sense way. Apple can't stop all of us from talking about apples, or
even selling them, even though it is selling computers trademarked Apple.
Titles cannot be copyrighted. Another book could be published using the
title "Radical Media," by an author other than John Downing, either on
the same subject or on a very different subject. The issue here,
though, is trademark law, not copyright law.
Cease and desist orders are often issued in an attempt to simply bully
someone to stop doing something. Often they are ONLY efforts to bully
and present positions that would dissolve in the face of legal
judgment. In this case, the decision not to engage legal advisors
immediately -- rather than yielding -- may have been premature.
Non-profit public interest groups such as the Electronic Frontier
Foundation can provide at minimum an education in the pertinent law;
collections of other cease and desist orders that have been ignored
because they weren't actually grounded in a strong legal position; and
potentially involvement in legal defense if that an actual legal process
begins.
Sandra Braman
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