Words, Power and Ownership

“You may gaze upon and buy the products of American culture. But don’t dare to be so naïve as to think that you can actually use them for your own purposes. We own them”.[1]

What would Groucho do? This is quite a well known story and it illustrates just how far potential infringement has come and will go.

In 1946 Groucho Marx the famous comedian and filmmaker received a letter from Warner Bros Studios. The letters contents were indeed wondrous to Groucho, the letter said that Groucho’s new film he was working on, A Night in Casablanca might infringe rights in the Warners Bros film Casablanca which was made a few years eariler. Groucho replyed to the letter in the following way.

Groucho wanted to know how Warner Bros could own something called Casablanca, which was the name of a Moroccan City. Groucho then wondered how anyone, the general public that is, would possibly confuse his film starring the Marx Bros with the Warner Bros film which starred Humphrey Bogart and Ingrid Bergman. Groucho argued that the film going public could identify between the two films and said that there was really no way Ingrid Bergman and his brother Harpo Marx are alike.

Really,when you think of it, Humphrey Bogart and Chico Marx are certainly unmistakingly different. It was most obviously a parody.  The What-would-Groucho-do strategy can help show how copyright and trade mark law is reaching outrageous new extremes.[2]

Language and trade marks have a long history, and changes in vocabulary is largely brought about by cultural change rather than linguistic change, by a process of convention. Justice Williams in the Tub Happy case said” that protecting the English language commons is an essential attribute of our trade mark law”[3] Megan Richardson argues that for “those concerned with freeing the language commons might redirect their attention to the level of regulation in the system”.[4]

[1] Bollier op cit p. 5

[2] ibid p. 7

[3] Mark Foys Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190

[4] Richardson, M. op cit p. 3

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Filed under Brand Power, Intellectual Property Law

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