This morning I met my brother in Metropolitan Bakery in West Philly, which is a cute little bakery and cafe, one of the few cafes of its type that does not have wireless internet. I actually really like the lack of wireless internet, as it keeps the cafe focused on people actually connecting with each other (although smartphones, unfortunately, throw a wrench in this). But I digress.
In this cafe, I drank a cup of Chinese Breakfast™ Yunnan Black Tea from Numi Tea, which I enjoyed and wrote a review of in case you're curious...but this post isn't about the tea, it's about the fact that the name of this tea is marked by a trademark symbol. This wasn't just any chinese breakfast tea, it was Chinese Breakfast™. This got me thinking about trademarks.
What is a a trademark?
The trademark symbol (™) is used by companies to denote the fact that they are using a symbol as a trademark. There are two types of trademarks, registered and unregistered. Registered trademarks are denoted by the (®) symbol. Trademarking a name or symbol, even if the trademarks are unregistered, provides a degree of legal protection for a company, in the case that other businesses use the same name.
What is the purpose of trademarking?
The idea of trademarking is simple: a company invests money, time, and resources establishing a reputation, and this reputation becomes associated with the name of that company and its products. If another company is able to come on the scene and name its products in the same way as the original company, it is able to "steal" the hard-earned positive reputation of the first company without having done the work to build up its own reputation. Furthermore, new companies on the scene could offer a lower-quality product, thus riding off the established company's reputation and tarnishing their image. If you want to read more on this topic, there's an extensive, fairly technical Wikipedia page on trademarks.
I'm a firm believer in the general validity of trademark law. I think that in general, it is a good thing. However, I also think it can be taken too far.
Taking trademarks too far:
Some companies unfortunately abuse the system of trademarks and trademark law by trying to register trademarks that are already in use as common phrases. Trademark abuse refers to a company inappropriately registering trademarks, as well as using their trademarks to legally threaten other companies, either to force them to rename their products or to extract royalties.
An example of a trademark of a common phrase is the company Life is Good, which has registered the phrase "Life is Good" as a trademark. This is, in my opinion, an overzealous use of trademarking. If I were a judge and I heard a case in which someone challenged this trademark, I would probably strike it down. The issue, as I see it, is that "Life is Good" is a very common phrase, and the company Life is Good seems to base their whole business model on selling merchandise based on the "Life is Good" slogan, which was in existence long before the company trademarked this phrase. I don't know when they registered the trademark, but according to the company's website, their first shirts with this slogan were presented in 1994. I do not know if this brand has actually sued anyone, but even if it has not and does not ever sue anyone, I still get a weird feeling whenever I see the registered trademark(®) symbol after the phrase "Life is Good". It does not give me good feelings about the company.
There are numerous examples of companies actually suing people over extremely vague trademarks. There's a long list of trademark abuse cases on Tabber's Temptations page on Trademark Abuse, which includes such absurdities as attempts to trademark the phrase Love Potion, or the word stealth. For a particularly nasty case, a cable company actually started suing all sorts of companies with the term "monster" in their names, including a mini golf company.
Because of the issue of trademark abuse, and the negative connotations it evokes, I think it is very important that companies tread lightly in their use of registering trademarks or marking names or symbols as trademarks. For example, my company Merit Exchange LLC (which owns RateTea) has a trademark (unregistered) for its name and the merit symbol used to represent it, which I explain on the Merit Exchange copyright notice. I would not even think of trying to trademark a general name like "community economy". Similarly, RateTea (as well as the domain name RateTea.com as well as the former name RateTea.net) is a trademark, but I would not try to trademark more general terms like "tea ratings". Even though RateTea was the first site to offer online tea ratings open to the general public, there were prior sites (like Teaviews, and many individual bloggers) which already published numerical ratings of teas. Even if there were no prior examples of tea ratings anywhere, I still think it would be unethical and probably legally inappropriate to try to trademark a general phrase like that. And if I were to attempt an overzealous trademark, I would just alienate others and generate hostility towards my site and my company. I'd make myself and the company or website look bad.
And this is exactly what happens when companies overreach in their use of trademarks.
Back to Numi Tea and the Chinese Breakfast Trademark:
I personally believe that the term Chinese Breakfast is too general to trademark. The name, and similar names, are already in use by a number of different tea companies. For example, Rishi tea sells a "China Breakfast". I do not know which company created their tea first though, because I have not researched this topic. The way trademark law works, the name "China Breakfast" is similar enough to "Chinese Breakfast" that if the Chinese Breakfast trademark were ruled valid, the name "China Breakfast" would likely be infringing upon it--especially since both teas are Yunnan red (Dian hong) teas of a similar style and from the same region.
But I think that a case based on trademarking the term "Chinese breakfast" could and would break down in court. Prior use of the phrase is one factor, and I think if this could be established then the case would be sealed. But even if it were not in prior use, I still think it might be too vague and general to trademark. The name is similar to English breakfast and Irish breakfast teas, which are styles of tea that are not trademarked or owned by any particular brand, and which are defined by their character, not by association with a particular company or even particular origin of tea. "Chinese breakfast tea" is a very general term which evokes a strong traditional breakfast tea, with a simple modifier implying that the tea either originates in China or is a style consumed in China. I also think that if a trademark of a general term like "Chinese breakfast" were upheld in court, it would set a bad legal precedent that would lead to a rush for companies to register other names like "Turkish Breakfast", "Kenyan Breakfast", or possibly more esoteric terms. This rush would favor big companies with more resources for advertising and legal teams, and it would do nothing to reward companies for investing long-term resources in development of quality products, and it would ultimately create an anti-competitive environment that was not productive or beneficial to the tea industry as a whole, especially to tea drinkers.
Numi Tea is a company that prides itself on its ethics: it is a leader in sustainability, with a high portion of teas that are certified organic and also fair-trade certified as well. When I see the trademark symbol after the name Chinese breakfast, it doesn't give me a good feeling. Like my reaction when I see the ® symbol after the phrase "Life is Good", my immediate association is with frivolous lawsuits in which larger companies use their wealth and legal teams to bully individuals and smaller companies. I have no idea if Numi has ever done this, or would ever do this (I certainly hope that they would not), but the point is, by writing the ™ symbol after the generic name "Chinese Breakfast", they open the door to this sort of abuse. If they were to quietly remove that symbol, they would be sending a signal to people like me and to the world that they considered themselves above this sort of petty behavior, and instead wanted to focus on the quality of their product speaking for itself. And they can still benefit, legally and ethically, from the protection of trademark law, protecting their brand name.
(Numi, incidentally, is a registered trademark, and I would assert that this is proper and ethical use of trademark to protect brand name and reputation.)
What do you think?
Where do you draw the line between trademark abuse and legitimate use of trademarks? Do you think that this particular case of Numi trademarking (albeit not registering) the name "Chinese Breakfast" is going too far? Or is it within the range of what you think is acceptable?