Realtors v. realtors
Willow
argument back and forth mostly men (of course) trying to either be
witty or put each other down and not a single answer. At this point I
simply would like a clear explanation as to why the word "realtor" is
capitalized in books, magazines and print ads. Someone said it was a
title. Would that be like "Prince Charles?" I am a teacher, or am I a
Teacher?
I have read sentences like "I called my Realtor." This, to me, is
ridiculous as I have never seen a single other job title (other than
royalty) capitalized. I have noticed some British friends write "Mum"
or "Dad." Is this the same basic idea? I had thought that only in
German were nouns capitalized and that in English we only capitalized
proper nouns.
I realize this is not clearly organized but I would greatly
appreciated if anyone could jump in and sort it out.
Thank you in advance,
Lisa
j...@radidelmex.net
The term REALTOR is a registered collective membership mark that identifies a
real estate professional who is a member of the NATIONAL ASSOCIATION OF
REALTORS (1908) and subscribes to its strict Code of Ethics.
http://www.realtor.com/Basics/AllAbout/Realtors/WhatIs.asp?poe=realtor
CyberCypher
> What Is a REALTOR?
That's not the question the poster asked.
> wil...@volcanomail.com (Willow) burbled
> news:ec3821b6.02073...@posting.google.com:
> > At this point I simply would like a clear explanation
> > as to why the word "realtor" is capitalized in books,
> > magazines and print ads.
> The term REALTOR is a registered collective membership mark that
While this is true, as a few folks pointed out, there is no way to
enforce a restriction of the word "Realtor" to members of the NAR.
Maybe copy editors like to capitalize words they recognize as
registered trademarks. I'm pretty sure that it's capitalized in Ads
because it's a title and in advertisements, titles should get capital
letters, especially when they can be followed by (R).
I put "He was a realtor" into the Google.com search window and found
249 pages with that clause. Most of the first 50 seemed not to have
capital letters and a couple of those that did had the "(R)" after the
word. If you put that (R) there, you capitalize it. If you don't, then
you don't capitalize it.
You make a good point about "teacher/Teacher". We get no respect, so no
capital letter. Maybe we can register the name? Nah, it's too late.
--
Franke
Anthony Giorgianni
Dumpster and Magic Marker.
Regards,
Anthony Giorgianni
.
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Anthony Giorgianni
Regards,
Anthony Giorgianni
"Anthony Giorgianni" <agnew...@att.net> wrote in message
news:FZZ19.13048$pg2.1...@bgtnsc05-news.ops.worldnet.att.net...
> Realtor is a trademark and thus capitalized, like Jeep, Xerox, Dry Gas,
> Dumpster and Magic Marker.
>
> Regards,
> Anthony Giorgianni
> .
<snip>
Tony Cooper
> argument back and forth mostly men (of course) trying to either be
> witty or put each other down and not a single answer.
I remember the thread, and you were provided with a clear answer. You
were also provided with several arguments about the clear answer,
because all people don't agree. Do you think things have changed since?
The urls were posted then, and will be this time. Realtor is
capitalized because it's a registered membership mark designating that
the real estate agent is a member of the National Association of
Realtors. There are some that will follow the practice of capitalizing
it, and some that will not. Editors and style books generally do.
> I have read sentences like "I called my Realtor." This, to me, is
> ridiculous as I have never seen a single other job title (other than
> royalty) capitalized.
It's riduculous to me because I can't imagine saying it. I would say
"I called my real estate agent." I might add that "He is a Realtor"
meaning that he's professional enough to join the association. I
probably wouldn't, though, since it really doesn't make that much
difference to me. I doubt if you have seen "I called my Realtor" in
print unless it's was in "Letters to Editor". If a private individual
writes a letter or note to that effect, it's just an awkward way of
saying something.
You would be a Teacher if the National Association of Teachers (or
whatever the name of the national organization is) had registered that
term. If they didn't, you are a teacher.
(All above instances of "Realtor" sans appropriate mark since I don't
know how to make it on the keyboard)
--
Tony Cooper aka: Tony_Co...@Yahoo.com
Provider of Jots & Tittles
Anthony Giorgianni
they will likely get an advisory letter from the group's legal department or
some other representative. This is necessary to demonstrate that the
organization is taking steps to protect its patent. These notices not only
ask that the publication use a capital, but also the T or ® or service
mark one, whatever that is. Usually publications comply with the request to
use capitals, but with not with the request to include trade and service
marks. At the newspaper I worked for, we tried the trade marks for a while.
It was an incredible pain given the editing system we had at the time.
I remember as a reporter once using "dry gas" in a story about bad gasoline
anti-freeze. I got a call from Mr. Christy himself advising me of the
trademark "Drygas" Every year, the trade magazine Editor & Publisher has an
advertising insert on this (or at least it used to.) Companies take out ads
to remind editors and reporters the certain names are brands - like
Vice-Grip, Skil Saw, Band-Aid and Caterpillar.
Regards,
Anthony Giorgianni
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Willow
> news:ec3821b6.02073...@posting.google.com...
> > I posted about this before and instead of getting an answer I got an
> > argument back and forth mostly men (of course) trying to either be
> > witty or put each other down and not a single answer.
>
> I remember the thread, and you were provided with a clear answer. You
> were also provided with several arguments about the clear answer,
> because all people don't agree. Do you think things have changed since?
>
> The urls were posted then, and will be this time. Realtor is
> capitalized because it's a registered membership mark designating that
> the real estate agent is a member of the National Association of
> Realtors. There are some that will follow the practice of capitalizing
> it, and some that will not. Editors and style books generally do.
>
> > I have read sentences like "I called my Realtor." This, to me, is
> > ridiculous as I have never seen a single other job title (other than
> > royalty) capitalized.
>
> It's riduculous to me because I can't imagine saying it. I would say
> "I called my real estate agent." I might add that "He is a Realtor"
> meaning that he's professional enough to join the association. I
> probably wouldn't, though, since it really doesn't make that much
> difference to me. I doubt if you have seen "I called my Realtor" in
> print unless it's was in "Letters to Editor". If a private individual
> writes a letter or note to that effect, it's just an awkward way of
> saying something.
novels. I have not read the word "real estate agent" ever in her books
and I assume her editors are competent and edit for a living not a
hobby and therefore fairly good at what they do. The Los Angeles Times
newspaper uses the word "realtor" in place of "real estate agent." It
has been a long time since I've even seen the term "real estate agent"
which is why I became curious about the whole Realtor v. realtor
issue. Here, for example is a quote from an article (entitled: "Older
and Better")on the front page of the L.A. Times Real Estate section.
7/28/02: "Realtors are responding by making history a part of their
marketing, and not just with grand estates...as well." "For years,
savvy Realtors have included the names of such well-known architects
as Paul Williams in their listings." [No reg. mark used either simply
caps.]
Tony Cooper
There's a difference between a person saying "I called my Realtor" and a
newspaper saying "Realtors are responding.....". In the latter case,
the newspaper is referring to a group of people. It's a specific group
of real estate agents that belong to the association and are thus
considered (by some) to be more professional than the retiree or
housewife working as a real estate agent to get out of the house a
couple of days a week. If a newspaper is going to quote a
representative of the industry, it's proper to point out that the
representative is somewhat professional.
There's an implication that a Realtor is more professional than a real
estate agent. At least, that's what the Realtor's would like us to
believe. I don't think joining an association is necessarily a mark of
professionalism or greater competency. They may *be* professional, but
not by virtue of joining the association.
If Faye wants to have one of her characters say "I called my Realtor",
then she's using a conversational style that reflects the inaccuracies
of the way people really speak. To me, it's like saying "I called my
ASE automobile mechanic" If Faye describes a character - rather than
ascribing dialog to a character - as a Realtor, then she is implying
some professionalism. Editing novels is different than editing
newspapers. If a novelists writes "I done called my Realtor.", then the
editor should leave it stand regardless of usage or grammar.
I thought Kellerman's novels were about policemen, not real estate
agents. If real estate agents factor in her novels enough, I'd assume
she's professional enough to know the terms. There's no body of
evidence out there, though, that says that even best-selling authors
research all aspects of what they write about. Some authors write "the
Throughway" when they mean "the Thruway".
[No reg. mark used either simply
> caps.]
Newspapers and magazines have style rules. Some never include the
marks.
Apurbva Chandra Senray
they insist that it be capitalised and used only when referring to it
or its members. The generic term is "real estate agent," and that is
the term the Associated Press sytlebook recommends using.
I always say "real estate agent" myself, but in common speech it is
perfectly acceptable to say "realtor" (or, god help us, "realator"),
even when you aren't necessarily talking about an actual member of the
organisation. In such cases, I would say go ahead and lower-case it;
to hell with the association. Language belongs to you and you needn't
mind the dictates of some commercial entity.
Howard G Walker
> [snip]
> Language belongs to you and you needn't
> mind the dictates of some commercial [or personal] entity.
You mean like mr apurbva chandra senray?
Pat Durkin
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
news:c7482783.02080...@posting.google.com...
Or even "relator". It's almost as bad as "nucular".
Apurbva Chandra Senray
> If Faye wants to have one of her characters say "I called my Realtor",
> then she's using a conversational style that reflects the inaccuracies
> of the way people really speak. To me, it's like saying "I called my
> ASE automobile mechanic"
Have you considered the possibility that "realtor" is considered
and used by many people as a generic, synonymous with "real estate
agent"? I think it's very possible for people to say "realtor" without
intending to mean or, in fact, meaning "Realtor."
Anthony Giorgianni
use the word Realtor. I think most people do not realize it is a service
mark. In fact, in this way, many brand names fall into common use and lose
their trademark status. One very good example is "zipper," once a trademark
owned by BF Goodrich. The company lost its legal efforts to retain ownership
of the word. Another one that is kind of in transition is Laundromat,
another service mark.(I think White-Westinghouse owns it..it is easy to
check). That is why trademark and service mark owners write letters asking
that publications use the uppercase and the marks. That way, if a question
comes up in court, they can then demonstrate that they have not consented to
giving up their ownership of the word.
It is of course up to the publication whether to comply. I think most
publications honor the capitalization because it is a brand name - Frisbee,
Ford, Explorer, Jeep, etc.
Regards,
Anthony Giorgianni
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
news:c7482783.02080...@posting.google.com...
<snip>
Have you considered the possibility that "realtor" is considered
> and used by many people as a generic, synonymous with "real estate
> agent"? I think it's very possible for people to say "realtor" without
> intending to mean or, in fact, meaning "Realtor."
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Raymond S. Wise
> That is true that many people are not thinking of the association when
they
> use the word Realtor. I think most people do not realize it is a service
> mark. In fact, in this way, many brand names fall into common use and lose
> their trademark status. One very good example is "zipper," once a
trademark
> owned by BF Goodrich. The company lost its legal efforts to retain
ownership
> of the word. Another one that is kind of in transition is Laundromat,
Not quite true. It appears that BF Goodrich never had a trademark for a
"Zipper" fastener. The trademark was for "Zipper Boots," and they retained
that.
See
http://www.bartleby.com/61/90/Z0019000.html
> another service mark.(I think White-Westinghouse owns it..it is easy to
> check). That is why trademark and service mark owners write letters asking
> that publications use the uppercase and the marks. That way, if a question
> comes up in court, they can then demonstrate that they have not consented
to
> giving up their ownership of the word.
>
> It is of course up to the publication whether to comply. I think most
> publications honor the capitalization because it is a brand name -
Frisbee,
> Ford, Explorer, Jeep, etc.
>
--
Raymond S. Wise
Minneapolis, Minnesota USA
E-mail: mplsray @ yahoo . com
Tony Cooper
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
news:c7482783.02080...@posting.google.com...
That's exactly what I meant when I said the author could have been using
a conversational style. It's not bad writing to have characters use bad
usage if you are trying to portray the type of person that uses bad
usage. It seems a reach for a mystery writer to flesh out a character
over this term, though.
Anthony Giorgianni
posted - that it once WAS a BF Goodrich trademark and then, after the
lawsuit, became a non-trademark. BF Goodrich apparently was able to prevail
on Zipper Boots. I've seen old dictionaries that referred to Zipper as a
trademark.
Regards,
Anthony Giorgianni
"Raymond S. Wise" <illinoi...@mninter.net> wrote in message
news:ukj9m99...@corp.supernews.com...
Apurbva Chandra Senray
> That's exactly what I meant when I said the author could have been
> using a conversational style. It's not bad writing to have characters use
> bad usage if you are trying to portray the type of person that uses bad
> usage.
I think it's a reach to conclude that the type of person who
might use "realtor" as a generic term is necessarily "the type of
person that uses bad usage."
> It seems a reach for a mystery writer to flesh out a character
> over this term, though.
I'm not sure I understand. Are you saying a mystery writer would
not be aware of this level of detail in a character's vocabulary?
david56
Mum and Dad are proper nouns in usage - "Pass me the biscuits, Mum".
Where is Dad today? mum and dad are relationships - My mum passed me
the biscuits. I couldn't see my dad.
--
David
=====
traveling with a temporary .sig - SW France via GPRS
Willow
Thank you, this was the best explanation so far (imho)and of course
one I agree with :). Interestingly, since I live in the hottest real
estate market in the state of California it's a topic often discussed
and written about. I did an informal and non-scientific survey and
asked everyone I could think of who they would call if they were to
sell their homes. Exactly half said they would call "an agent" or a
real estate agent and half used the term "realtor." This shows that
the term is coming into popular use.
Jerry Friedman
> they insist that it be capitalised and used only when referring to it
> or its members. The generic term is "real estate agent," and that is
> the term the Associated Press sytlebook recommends using.
Don't they insist on "REALTOR"? This is just self-puffery, and
Anthony Giorgianni's newspaper is right not to go along. Too bad they
can't just ignore the whole upper-case thing.
> I always say "real estate agent" myself, but in common speech it is
> perfectly acceptable to say "realtor" (or, god help us, "realator"),
> even when you aren't necessarily talking about an actual member of the
> organisation. In such cases, I would say go ahead and lower-case it;
> to hell with the association. Language belongs to you and you needn't
> mind the dictates of some commercial entity.
Bingo. About ten years ago, the U. of Chicago style manual said the
same about the annoying capital "The" in "The New York Times" and all
the rest. Just write "the New York Times" and "realtor" (or better,
"real-estate agent", with a hyphen to indicate the correct accent and
avoid confusing our Rightpondian friends).
Does anyone know whether the U. of C. style folks have changed their
opinion?
--
Jerry Friedman
Don Aitken
Friedman) wrote:
>acse...@yahoo.com (Apurbva Chandra Senray) wrote in message news:<c7482783.02080...@posting.google.com>...
>> I always say "real estate agent" myself, but in common speech it is
>> perfectly acceptable to say "realtor" (or, god help us, "realator"),
>> even when you aren't necessarily talking about an actual member of the
>> organisation. In such cases, I would say go ahead and lower-case it;
>> to hell with the association. Language belongs to you and you needn't
>> mind the dictates of some commercial entity.
>
>Bingo. About ten years ago, the U. of Chicago style manual said the
>same about the annoying capital "The" in "The New York Times" and all
>the rest. Just write "the New York Times" and "realtor" (or better,
>"real-estate agent", with a hyphen to indicate the correct accent and
>avoid confusing our Rightpondian friends).
>
The only confusion likely is about why you insert the superfluous
word. They are just estate agents here (the only group who
consistently score lower than politicians and journalists in "Who do
you trust" polls). Do you have personal-estate agents over there?
--
Don Aitken
Skitt
> (Jerry Friedman) wrote:
>> (Apurbva Chandra Senray) wrote:
>>> I always say "real estate agent" myself, but in common speech it is
>>> perfectly acceptable to say "realtor" (or, god help us, "realator"),
>>> even when you aren't necessarily talking about an actual member of
>>> the organisation. In such cases, I would say go ahead and lower-
>>> case it; to hell with the association. Language belongs to you and
>>> you needn't mind the dictates of some commercial entity.
>>
>> Bingo. About ten years ago, the U. of Chicago style manual said the
>> same about the annoying capital "The" in "The New York Times" and all
>> the rest. Just write "the New York Times" and "realtor" (or better,
>> "real-estate agent", with a hyphen to indicate the correct accent and
>> avoid confusing our Rightpondian friends).
>>
> The only confusion likely is about why you insert the superfluous
> word. They are just estate agents here (the only group who
> consistently score lower than politicians and journalists in "Who do
> you trust" polls). Do you have personal-estate agents over there?
Not commonly, but one could be appointed to handle someone's estate.
I usually say "real astate agent" when referring to people handling real
property transactions, because I don't know if they are a Realtor or not.
--
Skitt (in SF Bay Area) http://www.geocities.com/opus731/
I speak English well -- I learn it from a book!
-- Manuel (Fawlty Towers)
daye
"david56" <bass.a...@ntlworld.com> wrote in message
news:3D4A58A6...@ntlworld.com...
Anthony Giorgianni
newspapers, DO capitalize trademarks. (The first letter, not the whole
thing). They do not use the trademark or service mark symbol.
I think that is the correct way too. A proper noun - the name of a product
or service - should be capitalized. Would you write jeep or ford or at&t or
roto-rooter man .. er.. person?
Regards,
Anthony Giorgianni
"Jerry Friedman" <jerry_f...@yahoo.com> wrote in message
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Apurbva Chandra Senray
I wasn't aware that my full name had become a commonly used
generic term for something. Not only have I joined the illustrious
ranks of Mr. Gerry, Mr. Boycott, Mr. Lynch, et al., but I have the
distinction of having had my complete appellation preserved.
John Smith
>
> "Willow" <wil...@volcanomail.com> wrote:
> > <...>
> > Faye Kellerman, a best-selling author, uses the term "realtor" in her
> If Faye wants to have one of her characters say "I called my Realtor",
> then she's using a conversational style that reflects the inaccuracies
There's nothing inaccurate about it at all. Usage determines meaning.
When corporate bodies and legislative types presume to dictate language
usage, they are only parading their own remarkable ignorance and amusing
arrogance.
I am dealing with a realtor right now. He may belong to one or another
professional organization, and he may play golf, etc., but those things
don't concern me.
\\P. Schultz
Tony Cooper
news:c7482783.02080...@posting.google.com...
news:<aicctt$135fnm$1...@ID-113505.news.dfncis.de>...
>
>
> > That's exactly what I meant when I said the author could have been
> > using a conversational style. It's not bad writing to have
characters use
> > bad usage if you are trying to portray the type of person that uses
bad
> > usage.
>
> I think it's a reach to conclude that the type of person who
> might use "realtor" as a generic term is necessarily "the type of
> person that uses bad usage."
Different standards for different people. I think an author that writes
"He called a realtor" when he means "He called a real estate agent" is
guilty of bad usage. "Bad" is a bit over-the-top since it's not a major
sin of terminology, but it's incorrect. If a person writes a letter to
someone else and says "I called a realtor" when he mean real estage
agent, that's a different thing.
> It seems a reach for a mystery writer to flesh out a character
> > over this term, though.
>
> I'm not sure I understand. Are you saying a mystery writer would
> not be aware of this level of detail in a character's vocabulary?
I said "flesh out". A writer tries to create as complete an image of
the character as he can in relation to the importance of the character.
There are many ways to give the character some life and realness, but I
wouldn't think using "Realtor", "realtor" or "real estate agent" would
be one of them. It has nothing to do with the awareness of the writer,
but to do with what the writer uses.
An example might be if a character was described as wearing a Masonic
ring and a Shriner's lapel pin as part of fleshing out the character as
a joiner that works to advance in a social setting. If the author does
that, he should use the correct terms.
Anthony Giorgianni
to be capitalized... but that doesn't mean it's proper, I think.
Regards,
Anthony Giorgianni
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Tony Cooper
> >
> > "Willow" <wil...@volcanomail.com> wrote:
> > > <...>
> > > Faye Kellerman, a best-selling author, uses the term "realtor" in
her
> > > novels. <...>
> >
> > If Faye wants to have one of her characters say "I called my
Realtor",
> > then she's using a conversational style that reflects the
inaccuracies
> > of the way people really speak. <...>
>
> There's nothing inaccurate about it at all. Usage determines meaning.
> When corporate bodies and legislative types presume to dictate
language
> usage, they are only parading their own remarkable ignorance and
amusing
> arrogance.
The least you could do is trot out a new argument. That one's
shop-worn. I know, there's a group of people that insist that a machine
that makes copies is a xerox machine no matter who manufactured it, any
hook-and-loop material is velcro, and any fizzy drink is a coke. Usage
determines meaning.
It does in ordinary conversation. Usage makes the meaning clear.
Still, have the amusing arrogance to publish a picture with captions
calling your new xerox made by IBM with a bottle of what you describe as
coke in a Pepsi can, and see how fast the corporate types set you
straight.
> I am dealing with a realtor right now. He may belong to one or another
> professional organization, and he may play golf, etc., but those
things
> don't concern me.
That's personal conversation and your personal description. No problem,
and no reason for your concern or mine. However, if the man hands you
a card saying "John Jones, realtor", he'll be selling used - no, make
that pre-owned - cars next week. His own profession will put the kibosh
on him.
R H Draney
> I wasn't aware that my full name had become a commonly used
> generic term for something. Not only have I joined the illustrious
> ranks of Mr. Gerry, Mr. Boycott, Mr. Lynch, et al., but I have the
> distinction of having had my complete appellation preserved.
Okay, now we're being silly, but it *does* suggest a contest...can
anyone think of a person whose *full* name has become an eponym?...I
think we need something a little more universal than "Oh, don't go all
Richard Simmons on me now!"...not sure whether Lucy Stone fills the
bill....r
Tony Cooper
"R H Draney" <dado...@earthlink.net> wrote in message
news:Xns925ED9EDC...@216.148.53.100...
John Hancock for signature.
Aokay [David G. Bryce]
answer. Here it is: the realty gang are putting on airs -- just
that, no more, no less.
Willow, try to imagine capitalizing lawyer, banker, storekeeper,
etc. and you will see how silly capitalizing realtor is.
dgb
On 31 Jul 2002 08:04:59 -0700, wil...@volcanomail.com (Willow)
wrote:
Evan Kirshenbaum
There's a list at
http://members.tripod.com/~foxdreamer/page2.html
The full names they list are
Benedict Arnold
Geronimo
Granny Smith
Jesus Christ
John Hancock
Mae West
Matthew Walker
Roy Rogers
Rube Goldberg
ruy lopez
sally lunn
Shirley Temple
Tom Collins
According to the page, these are all accepted and verified as
etymologies by RHUD2e.
Another list at
http://users.tinyonline.co.uk/gswithenbank/eponyms.htm
adds
Heath Robinson
Rastafarian [okay, that's from a full title, "Ras Tafari"]
I'd probably add "Lou Gehrig's disease" and "Tommy John surgery".
--
Evan Kirshenbaum +------------------------------------
HP Laboratories |"Revolution" has many definitions.
1501 Page Mill Road, 1U, MS 1141 |From the looks of this, I'd say
Palo Alto, CA 94304 |"going around in circles" comes
|closest to applying...
kirsh...@hpl.hp.com | Richard M. Hartman
(650)857-7572
Tony Cooper
"Aokay [David G. Bryce]" <Ao...@DavidBryce.net> wrote in message
news:cjpmkukm5i357r4cj...@4ax.com...
> It's typical of this group that Willow still hasn't had a straight
> answer. Here it is: the realty gang are putting on airs -- just
> that, no more, no less.
>
> Willow, try to imagine capitalizing lawyer, banker, storekeeper,
> etc. and you will see how silly capitalizing realtor is.
>
Willow *did* get a straight answer...several of them. It was explained
why the word Realtor is capitalized, who a Realtor is, and why
non-trademarked job titles are not treated the same. She received the
same straight answers when she brought up the subject a few months back.
There are people - and, evidently, you are one of them - that don't
believe the word should have been trademarked and need not be
capitalized. That is opinion. Expressing your disagreement that a word
should have a legal designation when it does is not a straight answer.
You are certainly entitled to the opinion, but you are not providing her
with a straighter answer than the other posters.
The fact is that Realtor is properly capitalized and reserved for a
certain group of people. The observation that this is "silly" is no
more than opinion and an expression of your own personal viewpoint.
Raymond S. Wise
Mae West for a life jacket.
Shirley Temple for a drink.
Benedict Arnold for a traitor.
Marco Polo for the game played in swimming pools.
I once wrote a humorous paper for a French class in which I had a knight
returning from the Crusades anachronistically tell how he felt like a real
"Rip van Winkle."
It's easier to turn a whole name into an eponym, of course, if the name is
only one word:
atlas, after the Titan by that name.
mercury, the metal, and Mercury, the planet, after the god.
Venus, after the goddess.
the planets Mars, Jupiter, Saturn, Uranus, Neptune, and Pluto, after the
relevant mythological figures, and similarly for names of other astronomical
bodies, such as the asteroid Eros.
rzed
"Aokay [David G. Bryce]" <Ao...@DavidBryce.net> wrote in message
news:cjpmkukm5i357r4cj...@4ax.com...
I tried to find Realtor *or* realtor in older dictionaries, and could not.
It may be that the dictionaries just missed the term, but it suggests to me
that it was a later addition to the vocabulary, and perhaps made up to be
service mark. If that's the case, it isn't really putting on airs, any more
than giving a product or service a trade or brand name is.
Does anyone know the date of first use of "realtor," capitalized or not?
--
rzed
david56
>
> Is it 'Mum' or 'Mom'?
>
> "david56" <bass.a...@ntlworld.com> wrote in message
> news:3D4A58A6...@ntlworld.com...
> > Mum and Dad are proper nouns in usage - "Pass me the biscuits, Mum".
> > Where is Dad today? mum and dad are relationships - My mum passed me
> > the biscuits. I couldn't see my dad.
Was there any doubt? "Mom" is seen as American by the English, who say
"Mum". Her late majesty was the Queen Mum, never the other.
Apurbva Chandra Senray
> I think that is the correct way too. A proper noun - the name of a product
> or service - should be capitalized. Would you write jeep or ford or at&t or
> roto-rooter man .. er.. person?
But what about when the word has acquired a secondary meaning
that transforms it from a proper noun to a common noun -- "jeep"
certainly has such a usage. There are jeeps that are sold under brands
other than Jeep.
Apurbva Chandra Senray
> I said "flesh out". A writer tries to create as complete an image of
> the character as he can in relation to the importance of the character.
> There are many ways to give the character some life and realness, but I
> wouldn't think using "Realtor", "realtor" or "real estate agent" would
> be one of them. It has nothing to do with the awareness of the writer,
> but to do with what the writer uses.
Are you saying that unless the author intends to portray the
character as the kind of person who would say "realtor" instead of
"real estate agent," then the author should always have the character
say "real estate agent"? If that is what you are saying, then there
are several assumptions there that I think aren't necessarily
supported. As far as I can tell, a rather large number of Americans
representing a range of types uses "realtor" as a synonym for "real
estate agent."
John Hall
>I tried to find Realtor *or* realtor in older dictionaries, and could not....
I met one who was not quite as other men are, but I don't know if he
was a surRealtor or a surrealtor.
--
John W Hall <wweexxss...@telusplanet.net>
Calgary, Alberta, Canada.
"Helping People Prosper in the Information Age"
Apurbva Chandra Senray
> It does in ordinary conversation. Usage makes the meaning clear.
And, perhaps, dialogue in a novel is written to illustrate
ordinary conversation.
> Still, have the amusing arrogance to publish a picture with captions
> calling your new xerox made by IBM with a bottle of what you describe as
> coke in a Pepsi can, and see how fast the corporate types set you
> straight.
Let them. It's their right and, indeed, their legal obligation to
do so. There is, however, no obligation on my part to pay them any
attention.
> However, if the man hands you a card saying "John Jones, realtor", he'll
> be selling used - no, make that pre-owned - cars next week. His own
> profession will put the kibosh on him.
There's a big, big, big difference between someone who is using a
trademarked term in connection with a commercial activity in a way
that infringes on someone's trademark and what we're talking about
here. I, having no connection to the real estate business, can say
"realtor" from dawn to dusk without ever having to worry about
trademark law.
This reminds me of a recent discussion in another forum
(http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=126446&highlight=legos)
in which some Europeans took the position that Americans who say
"Legos" instead of "Lego bricks," as dictated by the Lego company, are
mentally deficient. Let me indulge in quoting myself --
---
We, as private citizens, consumers, and writers are under no
obligation to abide by Lego's purported restrictions on the use of its
trademark. Lego, the government, nobody has any cause of action
against me if, when I talk or write about their product, I refer to
them as Legos.
Trademark law does not give the holder the right to control all
use of the term in question. And a company does not have the power to
define the terms of fair use. Fair use is based on our rights under
the First Amendment and cannot be limited in this manner.
---
There are many ways a company can lose trademark rights in a
term. With regard to "aspirin," for example, after the Second Wrold
War, the allies demanded that the German government force teh Bayer
company to relinquish its trademark rights in the word so that it
could be used by any manufacturer of aceto-salycilic acid products.
It would be very, very unusual today for a company to lose its
trademark rights in a term just because ordinary consumers started
using the term as a generic. Look at some of the examples given here
-- Xerox, Kleenex, Coke, Photoshop, even Frisbee. These are all
trademarked terms and the companies that own the terms are in no
danger of losing their trademark rights in spite of the fact that they
are extensively used by consumers generically.
It's only when the trademark owner itself fails to act to protect
its rights in a term that it starts to risk losing rights. Part of
what a trademark holder is expected to do is write policies purporting
to set forth the "proper" use of the trademark and to write nasty
letters to people who use it "improperly" in the media. Most
importantly, the company must demonstrate that it is itself not using
its trademark as a generic term and that when one of its competitors
uses the term, it takes appropriate action.
The fact that consumers might start using a term as generic
creates a very, very small risk that the company will lose its
trademark rights. In fact, when it comes to marketing, it might be a
big benefit to a company. Furthermore, when the use of the term is
almost exclusively with regard to the company's actual product itself,
the real risk of losing rights is nil. That is, when people use
"legos" incorrectly (in the eyes of the company), they are still
almost always referring to the blocks made by the Lego company, never
to blocks made by someone else. In other words, no matter what they
say, it will hurt the Lego company noway nowhow if everybody in the
dad-blamed world uniformly refers to Lego blocks as "Legos."
From the point of view of a consumer, I see it this way. Language
is a inborn human tool and it is an inborn human right to use language
as we see fit. Limiting our linguistic choices because of the legal
concerns of a commercial enterprise, in my view, is pointless and
unnecessary. Even if Lego were to somehow lose its trademark rights in
"Lego" (an almost completely unlikely prospect), by that time it would
have had many decades to profit from exclusive use of the term and it
would have the right to come up with another trademark to distinguish
its plastic blocks from its competitors' plastic blocks. Yes, it might
be annoying to Lego, but, you know, in the big picture, no big loss to
the world.
In other words, companies ask you to follow their rules because
they have to ask you. Whether or not you comply is completely up to
you and will have no effect on the company's trademarks. Furthermore,
there is an idea that the public actually has the right to make a word
that originally sttarted out as a trademark into a generic term. If it
suits us to use the word "Lego" generically, then ultimately there's a
limit to how long a commercial enterprise can try to stop us from
doing so. Langague belongs to its users, not to individual entities.
Gwen Lenker
>Okay, now we're being silly, but it *does* suggest a contest...can
>anyone think of a person whose *full* name has become an eponym?...I
>think we need something a little more universal than "Oh, don't go all
>Richard Simmons on me now!"...not sure whether Lucy Stone fills the
>bill....r
Chick Sales.
Don Aitken
<agnew...@att.net> wrote:
>That's not right, Jerry. Maybe I wasn't clear. My former newspaper, as most
>newspapers, DO capitalize trademarks. (The first letter, not the whole
>thing). They do not use the trademark or service mark symbol.
>
I would say that "as" in that sentence ought to be "like". An example
of hypercorrection, arising from the feeling that the frequently
misused "like" is inherently a vulgar word. And "DO" should be "DOES".
--
Don Aitken
Don Aitken
<illinoi...@mninter.net> wrote:
>
>"Tony Cooper" <tony_co...@yahoo.com> wrote in message
>news:aifodg$13etsk$1...@ID-113505.news.dfncis.de...
>>
>> "R H Draney" <dado...@earthlink.net> wrote in message
>> news:Xns925ED9EDC...@216.148.53.100...
>> > acse...@yahoo.com (Apurbva Chandra Senray) wrote in
>> > news:c7482783.02080...@posting.google.com:
>> >
>> > > I wasn't aware that my full name had become a commonly used
>> > > generic term for something. Not only have I joined the illustrious
>> > > ranks of Mr. Gerry, Mr. Boycott, Mr. Lynch, et al., but I have the
>> > > distinction of having had my complete appellation preserved.
>> >
>> > Okay, now we're being silly, but it *does* suggest a contest...can
>> > anyone think of a person whose *full* name has become an eponym?...I
>> > think we need something a little more universal than "Oh, don't go all
>> > Richard Simmons on me now!"...not sure whether Lucy Stone fills the
>>
>> John Hancock for signature.
>
>Mae West for a life jacket.
>
>Shirley Temple for a drink.
>
>Benedict Arnold for a traitor.
>
>Marco Polo for the game played in swimming pools.
>
Gordon Bennett!
--
Don Aitken
Tony Cooper
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
news:c7482783.02080...@posting.google.com...
news:<aifj03$142sv5$1...@ID-113505.news.dfncis.de>...
>
>
> > I said "flesh out". A writer tries to create as complete an image
of
> > the character as he can in relation to the importance of the
character.
> > There are many ways to give the character some life and realness,
but I
> > wouldn't think using "Realtor", "realtor" or "real estate agent"
would
> > be one of them. It has nothing to do with the awareness of the
writer,
> > but to do with what the writer uses.
>
> Are you saying that unless the author intends to portray the
> character as the kind of person who would say "realtor" instead of
> "real estate agent," then the author should always have the character
> say "real estate agent"?
I don't know how I can make this simpler to understand. I'm saying that
the use of "realtor" vs "real estate agent" in a novel is such a trivial
point that no writer should bother about considering it as a deliberate
characterization device. It's not trivial in a non-fiction piece since
it's a point of style. It is trivial in a fictionalized accounting of
conversation. You don't flesh out a fictional character with this
distinction.
This doesn't mean it couldn't be done. I could come up with a fictional
character that was distinctive because the character *always* used full
titles and association memberships when referring to other people. It
would make the character distinctive because it would reflect a manner
of speaking that was not the norm. What I don't think could be done
successfully is defining a character by this one usage.
The only reason a fiction writer should avoid using "realtor" when
describing a real estate salesperson is that it could distract a
knowledgeable reader. Small technical mistakes jump off the page to
some people. It disturbes the flow of reading.
To understand this, you need look no further than aue postings. Quite
frequently, I see a person write a few paragraphs that demonstrate
original thought and a great deal of consideration about the subject.
A follow-up, though, may key in on one word or phrase that is slightly
off or is misused. It makes me think the follow-up poster has been so
distracted by the one word or phrase that he didn't take in the balance
of the original post.
I left "disturbes" instead of correcting it to "disturbs". Most readers
will have paused at this point. Their thinking switched from reading to
what I've said to thinking about catching an error. It makes no
difference that the reader understood what was meant. The flow has been
broken.
Tony Cooper
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
> There's a big, big, big difference between someone who is using a
> trademarked term in connection with a commercial activity in a way
> that infringes on someone's trademark and what we're talking about
> here. I, having no connection to the real estate business, can say
> "realtor" from dawn to dusk without ever having to worry about
> trademark law.
Have you completely overlooked the many, many times that I've made the
distinction between conversation and formal published usage?
You have written all of this, seemingly, without understanding what you
have written. In summary, you are saying that an individual may use any
trademarked word erroneously in private conversation, but that the
corporation owning the trademark can and should stop the misusage when
it is done detrimentally to the corporation. No one - least of all me -
is arguing with that.
Using your Lego example, you can call any plastic block a Lego in
private usage or in conversation. However, you cannot put "Lego" on the
label of a box of plastic blocks that are not manufactured by Lego. You
cannot publish a photograph of a construction of plastic blocks that are
not made by Lego and call it a Lego construction in the title. That is
detrimental to Lego and they have the legal right to stop you.
Anthony Giorgianni
sure.
Thanks for pointing that out
Regards,
Anthony Giorgianni
"Don Aitken" <don-a...@freeuk.com> wrote in message
news:3d4be741...@news.freeuk.net...
Anthony Giorgianni
is sold under the brand Jeep except Jeeps. Doing so, I think, would invite a
lawsuit. I'd be surprised to see any publication use the term "jeep" as a
generic for SUV.
It IS interesting, however, that my computer dictionary (American Heritage,
I think), has it as BOTH a trademark and generic term. Actually, from what I
remember, the name was derived from the Army GP - for "general purpose"
vehicle. But my dictionary says G (overnment)+P, the "designator for a
80-inch wheelbase reconnaisance car." I guess the history is not known for
sure.
There is an interesting piece that mentions the trademark history at:
http://www.womanmotorist.com/review/chrysler/jb-jeep-cherokee-9901.shtml
Regards,
Anthony Giorgianni
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
news:c7482783.02080...@posting.google.com...
Skitt
> I left "disturbes" instead of correcting it to "disturbs". Most
> readers will have paused at this point. Their thinking switched from
> reading to what I've said to thinking about catching an error. It
> makes no difference that the reader understood what was meant. The
> flow has been broken.
You got *that* right! It had me wondering about it for the rest of the post
until this paragraph.
--
Skitt (in SF Bay Area) http://www.geocities.com/opus731/
I speak English well -- I learn it from a book!
-- Manuel (Fawlty Towers)
Anthony Giorgianni
http://www.realtor.com/Basics/AllAbout/Realtors/WhatIs.asp?poe=realtor
Regards,
Anthony Giorgianni
"rzed" <rza...@ntelos.net> wrote in message
news:UlQ29.216063$724....@atlpnn01.usenetserver.com...
Skitt
> daye wrote:
>> "david56" wrote:
>>> Mum and Dad are proper nouns in usage - "Pass me the biscuits, Mum".
>>> Where is Dad today? mum and dad are relationships - My mum passed
>>> me the biscuits. I couldn't see my dad.
>>
>> Is it 'Mum' or 'Mom'?
>
> Was there any doubt? "Mom" is seen as American by the English, who
> say "Mum". Her late majesty was the Queen Mum, never the other.
Mum's the word, eh?
Skitt
> That one is always capitalized. Jeep is a DaimlerChrysler trademark.
> Nothing is sold under the brand Jeep except Jeeps. Doing so, I think,
> would invite a lawsuit. I'd be surprised to see any publication use
> the term "jeep" as a generic for SUV.
>
> It IS interesting, however, that my computer dictionary (American
> Heritage, I think), has it as BOTH a trademark and generic term.
> Actually, from what I remember, the name was derived from the Army GP
> - for "general purpose" vehicle. But my dictionary says G
> (overnment)+P, the "designator for a 80-inch wheelbase reconnaisance
> car." I guess the history is not known for sure.
>
> There is an interesting piece that mentions the trademark history at:
>
> http://www.womanmotorist.com/review/chrysler/jb-jeep-cherokee-
> 9901.shtml
MWCD10:
Main Entry: 1jeep
Pronunciation: 'jEp
Function: noun
Etymology: probably from g. p. (abbreviation of general purpose)
Date: 1940
: a small general-purpose motor vehicle with 80-inch wheelbase, 1/4-ton
capacity, and four-wheel drive used by the U.S. army in World War II; also :
a similar but larger and more powerful U.S. army vehicle
When I first saw them in Germany in 1945, they were referred to as jeeps,
with a lowercase letter, as the trademark did not exist yet. A couple of
years later I drove one.
Alan Jones
> I tried to find Realtor *or* realtor in older dictionaries, and could
not.
> It may be that the dictionaries just missed the term, but it suggests to
me
> that it was a later addition to the vocabulary, and perhaps made up to be
> service mark. If that's the case, it isn't really putting on airs, any
more
> than giving a product or service a trade or brand name is.
>
> Does anyone know the date of first use of "realtor," capitalized or not?
OED2's definiiton and first-use citation:
A proprietary term in the U.S. for a real-estate agent or broker who belongs
to the National Association of Realtors (formerly the National Association
of Real Estate Boards). Also generally, an estate agent.
"1916 C. N. Chadbourn in Nat. Real Estate Jrnl. 15 Mar. 111/2, I propose
that the National Association adopt a professional title to be conferred
upon its members which they shall use to distinguish them from outsiders.
That this title be copyrighted and defended by the National Association
against misuse. I therefore, propose that the National Association adopt and
confer upon its members, dealers in realty, the title of realtor (accented
on the first syllable)".
So the earliest form is 'Realtor' and the word is (or was) copyright.
In BrE we don't AFAIK use 'R/realtor'. Both OED2 and NSOED have to be
searched rather carefully to find 'real estate". (It does occur in citations
for other legal terms, without having its own full definition and
citations.) Our ordinary term for a house and land is 'a property'. The
person who finds a buyer for a property and vice versa is an 'estate agent'.
Alan Jones
Anthony Giorgianni
Regards,
Anthony Giorgianni
"Skitt" <sk...@earthlink.net> wrote in message
news:aih5l7$139cq5$1...@ID-61580.news.dfncis.de...
Raymond S. Wise
"Alan Jones" <a...@blueyonder.co.uk> wrote in message
news:xQV29.10428$oo4....@news-binary.blueyonder.co.uk...
Can you copyright a single word? Seems extremely unlikely. I'm inclined to
think that C. N. Chadbourn made an error. "Realtor" is a trademark (the AHD4
says "service mark"). The Encarta World Dictionary says:
From
http://dictionary.msn.com/find/entry.asp?search=realtor
[quote]
Re·al·tor [...] _trademark_
a trademark for a member of the U.S. National Association of Realtors or the
Canadian Association of Real Estate Boards
[end quote]
I did a Google search for the latter group and found the site of the
Canadian Real Estate Association:
From
http://crea.ca/public/about/
[quote]
CREA owns the MLS® trade mark and has a proprietary interest in the REALTOR
trade mark. As a member of CREA, you can offer your clients an unbeatable
marketing combination with both trademarks. The REALTOR trade mark is your
clients' assurance of integrity. It can only be used in Canada by members of
The Canadian Real Estate Association and indicates that you, as a member,
accept and respect a strict Code of Ethics.
[end quote]
That Canadian spelling "trade mark" reminded me of the two Smith Brothers of
cough drop fame, "Trade" and "Mark."
See
http://www.fffoods.com/gallery.htm
and
http://www.fffoods.com/sbtoday.htm
Robert Bannister
> "John Smith" <jsm...@company.com> wrote in message
> news:3D4B4A9B...@company.com...
> > Tony Cooper wrote:
> > >
> > > "Willow" <wil...@volcanomail.com> wrote:
> > > > <...>
> > > > Faye Kellerman, a best-selling author, uses the term "realtor" in
> her
> > > > novels. <...>
> > >
> > > If Faye wants to have one of her characters say "I called my
> Realtor",
> > > then she's using a conversational style that reflects the
> inaccuracies
> > > of the way people really speak. <...>
> >
> > There's nothing inaccurate about it at all. Usage determines meaning.
> > When corporate bodies and legislative types presume to dictate
> language
> > usage, they are only parading their own remarkable ignorance and
> amusing
> > arrogance.
>
> The least you could do is trot out a new argument. That one's
> shop-worn. I know, there's a group of people that insist that a machine
> that makes copies is a xerox machine no matter who manufactured it, any
> hook-and-loop material is velcro, and any fizzy drink is a coke. Usage
> determines meaning.
>
> It does in ordinary conversation. Usage makes the meaning clear.
> Still, have the amusing arrogance to publish a picture with captions
> calling your new xerox made by IBM with a bottle of what you describe as
> coke in a Pepsi can, and see how fast the corporate types set you
> straight.
>
> > I am dealing with a realtor right now. He may belong to one or another
> > professional organization, and he may play golf, etc., but those
> things
> > don't concern me.
>
> That's personal conversation and your personal description. No problem,
> and no reason for your concern or mine. However, if the man hands you
> a card saying "John Jones, realtor", he'll be selling used - no, make
> that pre-owned - cars next week. His own profession will put the kibosh
> on him.
Only in the country where Realtor is something special. Of course, it's
unlikely the word would be used in the UK at all, but I do occasionally see
'realtor' in Australia and it means nothing more nor less than 'real estate
agent'.
--
Rob Bannister
Tony Cooper
news:3D4C65E2...@it.net.au...
I think that's understood. The discussion is about the American use.
The "National" in the association, is this nation. Kellerman writes
about Los Angeles. The people offering opinions one way or the other
are American. It has been pointed out that "estate agent" is used in
the UK.
I'm not sure about trademark laws and the international aspect. As far
as I know, if something is trademarked here, there's some sort of
reciprocity with certain countries. I don't know if it's enforced,
though.
Apurbva Chandra Senray
> Using your Lego example, you can call any plastic block a Lego in
> private usage or in conversation. However, you cannot put "Lego" on the
> label of a box of plastic blocks that are not manufactured by Lego. You
> cannot publish a photograph of a construction of plastic blocks that are
> not made by Lego and call it a Lego construction in the title. That is
> detrimental to Lego and they have the legal right to stop you.
The key difference is not between "informal, conversational"
usage on the one hand and "formal, published" usage on the other hand.
The distinction is between "use in commerce" and "not use in
commerce."
They only have the right to stop you if you are using their
trademark in commerce, that is, in connection with the provision of
goods or services in a manner that infringes with their trademark. So
you are right with respect to your first example.
However, if I am a newspaper publisher or a book publisher with
absolutely no connection with the real estate business or with the
manufacture and selling of toy blocks, I may use the terms "realtor"
and "lego" (and kleenex and xerox and frisbee and band-aid and so on)
as generic terms all I want in the text of my stories or in the
cutlines of photographs without violating trademark law. They can
write all the letters they want, but I have not committed trademark
infringement.
Publishers have the same free speech rights as individuals. If a
publisher is not infringing on a trademark, then that publisher can't
be stopped from using a term in a generic manner.
Apurbva Chandra Senray
> Have you completely overlooked the many, many times that I've made
> the distinction between conversation and formal published usage?
> Using your Lego example, you can call any plastic block a Lego in
> private usage or in conversation. ... You cannot publish a photograph of
> a construction of plastic blocks that are not made by Lego and call it a
> Lego construction in the title. That is detrimental to Lego and they have
> the legal right to stop you.
Just to follow up with actual cites to federal trademark law --
from 15 U.S.C. §1114 --
Section 1114. Remedies; infringement; innocent infringement by
printers and publishers
(1) Any person who shall, without the consent of the registrant
-
(a) use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with the
sale, offering for sale, distribution, or advertising of any
goods or services on or in connection with which such use is
likely to cause confusion, or to cause mistake, or to deceive;
or
(b) reproduce, counterfeit, copy, or colorably imitate a
registered mark and apply such reproduction, counterfeit, copy,
or colorable imitation to labels, signs, prints, packages,
wrappers, receptacles or advertisements intended to be used in
commerce upon or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion, or
to cause mistake, or to deceive,
shall be liable in a civil action by the registrant for the
remedies hereinafter provided. Under subsection (b) hereof, the
registrant shall not be entitled to recover profits or damages
unless the acts have been committed with knowledge that such
imitation is intended to be used to cause confusion, or to cause
mistake, or to deceive.
The elements of infringement, therefore, are --
1. Absent consent
2. Use in commerce
3. Reproduction, counterfeit, copy, or colourable imitation
4. Of a registered mark
5. Offering for sale, distribution, or advertising
6. Of any goods or services
7. Likely to cause confusion, to cause mistake, or to deceive.
Note particuarly prongs No. 2 and No. 5.
A newspaper or a book publisher, for example, that refers in its
copy to real estate agents as "realtors" who are not members of the
National Association of Realtors is not using the mark in commerce and
is not offering for sale, distribution, or advertising goods or
services that is likely to cause confusion. Likewise a
(non-advertisement) photograph of non-Lego brand toy blocks that are
identified in a cutline as "legos." These are "formal, published"
usage that do not amount to trademark infringement.
Tony Cooper
You are right and you are wrong. The publisher is guiltless if the word
is used in the text of stories. Stories are fiction, and the publisher
is publishing an author's words. If the publisher releases a book of
"100 rainy day projects that kids can build with legos", and the cover
and photographs of the projects show plastic blocks not made by Lego, he
is in violation of the trademark law. Even though he is not engaged in
the sale of plastic blocks, he is in violation.
Both situations are used in commerce since the books are sold. He does
have the latitude to use a lower case type style on the cover for
artistic purposes, but you will see a line somewhere that says "Lego is
a registered trademark of...." (whoever it is).
If, in your fourth paragraph, you are saying that a newspaper publisher
can use trademarked terms generically in stories - as in newspaper
stories - then you are wrong. The publisher's product is the newspaper,
and that's commerce. There is nothing non-commercial about a newspaper.
It isn't at all a matter of him being connected to the industry
involved.
If a columnist in a newspaper uses a trademarked term generically - like
Ann Landers writing "stuff your bra with kleenex to attract him", then
she'd probably get a firm letter suggesting that she either write
Kleenex or tissue. I doubt if the publisher would be involved.
Tony Cooper
Books, newspapers and magazines are products that are sold. That's
commerce any way you look at it. That also covers #5. Even a book,
newspaper or magazine that is given away free of charge is a part of
commerce since the publication is supported by advertising revenue. Any
appearance of anything in a book, magazine or newspaper is used in
commerce and is part of something offered for sale or distribution.
Tell me, since you are hanging your hat on a newspaper not being engaged
in commerce, how *do* you define "commerce"?
--
Tony Cooper aka: Tony_Co...@Yahoo.com
Provider of Jots & Tittles
--
Tony Cooper aka: Tony_Co...@Yahoo.com
Provider of Jots & Tittles
Mike Barnes
>I left "disturbes" instead of correcting it to "disturbs". Most readers
>will have paused at this point. Their thinking switched from reading to
>what I've said to thinking about catching an error. It makes no
>difference that the reader understood what was meant. The flow has been
>broken.
I managed to miss the spelling error, so I was still thinking about what
you wrote when I was distracted by this:
>
>
>--
>Tony Cooper aka: Tony_Co...@Yahoo.com
>Provider of Jots & Tittles
>
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Why were there 32 blank lines after your name? It's not an isolated
occurrence.
--
Mike Barnes
Apurbva Chandra Senray
> You are right and you are wrong.
> If, in your fourth paragraph, you are saying that a newspaper publisher
> can use trademarked terms generically in stories - as in newspaper
> stories - then you are wrong.
I am perfectly willing to entertain the possibility that I am
wrong about this, but just for the sake of disclosure let me say that
I am a lawyer. I do not practise trademark law, but I am regularly
exposed to trademark law issues. That is the source of my conclusions.
If you are, indeed, someone with expertise or experience with
trademark law, then I'd be happy to take this lesson from you.
As I understand it, the use must be a use in commerce in
connection with the sale, distribution, or advertising of goods or
services in a manner likely to confuse, to cause mistake, or to
deceive. All these elements must be present. Basically, what this
means is that you must be a competitor of the mark holder trying to
pass your product of under his trademark. A newspaper article or
(non-advertisement) photograph does not fit this definition.
> If a columnist in a newspaper uses a trademarked term generically -
> like Ann Landers writing "stuff your bra with kleenex to attract him", then
> she'd probably get a firm letter suggesting that she either write
> Kleenex or tissue.
"Firm letters" are sent out at the drop of the hat. They are not
conclusory on any issue.
Mike Barnes
>OED2's definiiton and first-use citation:
>A proprietary term in the U.S. for a real-estate agent or broker who belongs
>to the National Association of Realtors (formerly the National Association
>of Real Estate Boards). Also generally, an estate agent.
What makes the idea of "Realtor" seem so weird to me is the application
of a trademarked word to a person. Does anyone know of any other
trademarked or otherwise protected word that means a person? I don't
count a phrase that incorporates an ordinary name for a person, such as
"Avon lady" or "Chartered Accountant", it has to be a single word. I
can't think of any other than "Realtor".
--
Mike Barnes
Spehro Pefhany
> What makes the idea of "Realtor" seem so weird to me is the application
> of a trademarked word to a person. Does anyone know of any other
> trademarked or otherwise protected word that means a person? I don't
> count a phrase that incorporates an ordinary name for a person, such as
> "Avon lady" or "Chartered Accountant", it has to be a single word. I
> can't think of any other than "Realtor".
Engineer.
Best regards,
Spehro Pefhany
--
"it's the network..." "The Journey is the reward"
sp...@interlog.com Info for manufacturers: http://www.trexon.com
Embedded software/hardware/analog Info for designers: http://www.speff.com
9-11 United we Stand
Pat Durkin
"Mike Barnes" <mi...@senrab.com> wrote in message
news:ZEKFA5A3...@mydomain.invalid...
Shriner.
I don't know that it has been trademarked, but its use certainly carries
a protected meaning. A person who falsely claims to be one, and who is
found out, may find some limits to his success.
Mark Barratt
>acse...@yahoo.com (Apurbva Chandra Senray) wrote in
>news:c7482783.02080...@posting.google.com:
>
>> I wasn't aware that my full name had become a commonly used
>> generic term for something. Not only have I joined the illustrious
>> ranks of Mr. Gerry, Mr. Boycott, Mr. Lynch, et al., but I have the
>> distinction of having had my complete appellation preserved.
>
>Okay, now we're being silly, but it *does* suggest a contest...can
>anyone think of a person whose *full* name has become an eponym?
Yes, I can. But since it would give away an answer in the upcoming
(very soon, now) Summer Doldrums Competition, I won't mention it.
Mark Barratt
wrote:
>>> "R H Draney" <dado...@earthlink.net> wrote:
>>> > Okay, now we're being silly, but it *does* suggest a contest...can
>>> > anyone think of a person whose *full* name has become an eponym?
>Gordon Bennett!
OK, but who the hell was Gordon Bennett?
Don Aitken
wrote:
It's a bit of a mystery. The only really well-known person of that
name was owner of the New York Herald papers in the later 19th
century. He was a well-known figure in society, and notorious for his
habit of pissing in fireplaces when drunk. More about him at
http://www.infoplease.com/ce6/people/A0807036.html
Memorable enough, but it is difficult to explain why his name should
become an exclamation on the other side of the pond but not in his own
country. One theory is that it is just a modification of "God!",
rather like "Golly!" and does not relate to a specific person at all.
I once met a barrister called Gordon Bennett.
--
Don Aitken
Tony Cooper
Why were there 32 blank lines after your name? It's not an isolated
> occurrence.
Dunno. Probably has something to do with not snipping completely. That
doesn't make sense, though, does it?
Tony Cooper
> "Tony Cooper" <tony_co...@yahoo.com> wrote in message
news:<aiievt$14mg3r$1...@ID-113505.news.dfncis.de>...
>
> > You are right and you are wrong.
>
> > If, in your fourth paragraph, you are saying that a newspaper
publisher
> > can use trademarked terms generically in stories - as in newspaper
> > stories - then you are wrong.
>
> I am perfectly willing to entertain the possibility that I am
> wrong about this, but just for the sake of disclosure let me say that
> I am a lawyer. I do not practise trademark law, but I am regularly
> exposed to trademark law issues. That is the source of my conclusions.
> If you are, indeed, someone with expertise or experience with
> trademark law, then I'd be happy to take this lesson from you.
>
I am not a lawyer, and I claim no expertise or experience. I do have
enough experience to know that a newspaper is a commercial venture,
though.
As I understand it, the use must be a use in commerce in
> connection with the sale, distribution, or advertising of goods or
> services in a manner likely to confuse, to cause mistake, or to
> deceive. All these elements must be present.
How can all elements be present if there are "or"s in the list of
elements? I think you must mean that "sale, distribuiton or advertising
of good or services" is one element made up from any of the items in
that group of words. Same with confuse, cause mistake or deceive. Any
one of the three is an element, but all three need not be present.
Basically, what this
> means is that you must be a competitor of the mark holder trying to
> pass your product of under his trademark.
I wish you hadn't told me that you were a lawyer. For an ordinary
person to conclude from what you have said in the previous paragraph
basically means the above is bad enough. For a lawyer to do this is
astounding. How can you conclude that only a competitor can be guilty
of trademark infringement?
A newspaper article or
> (non-advertisement) photograph does not fit this definition.
No, it doesn't. But I thouroughly disagree with your definition. One
of the most well known instances of trademark enforcement is in the soft
drink area. If a restaurant patron asks for a "Coke", and is brought a
Pepsi or other brand of soft drink, Coca Cola will insist that the
restaurant server say something like "We don't serve Coca Cola. Will
Pepsi do?" Pepsi does the same if the reverse is true. The restaurant
is not a competitor of either Coca Cola or Pepsi. The action by Coke or
Pepsi isn't against the other firm, but against the restaurant.
It would be my guess - and just a personal guess - that most of the
legal activity based on trademark infringement has to with people and
firms that are *not* competitors of the trademark holder.
> > If a columnist in a newspaper uses a trademarked term generically -
> > like Ann Landers writing "stuff your bra with kleenex to attract
him", then
> > she'd probably get a firm letter suggesting that she either write
> > Kleenex or tissue.
>
> "Firm letters" are sent out at the drop of the hat. They are not
> conclusory on any issue.
Are you saying then, that the firm letter is without legal basis? That
the firm letter is the resort of the lawyer that has no law on his side?
Is the firm letter blowing smoke? Or, is it a way for the lawyer to
resolve an issue with the minimum amount of action?
Are you saying, as a lawyer that has been exposed to trademark law, that
Ann Landers (or the current writer of the column) is correct in writing
"kleenex" in the above example? Are you saying that Kimberley-Clark is
entirely without basis in requesting - even demanding - that the word be
written "Kleenex" or the word "tissue" be used?
Gary Williams
Hmmmm....probably it's because in most cases where there is a group of
people using a professional title designed to tell the public that
they have special qualifications in the field, there is no need to
restrict by trademark who can use the name, because licensure laws
take care of that. No one can hold himself out to be a dentist or a
certified public accountant or a barber who is not licensed to do so
by the state.
Does anyone know whether Certified Financial Planner is trademarked?
or ASE Certified Mechanic?
Gary Williams
Anthony Giorgianni
a Rockette, a Mouseketeer, a Teamster.... all these are organizations or
teams or groups and I suppose copyrighted or trademarked or registered.
Proper usage would require that a reference to any member of these
organizations would be capitalized. I suppose the work Yankee could
eventually pass into common usage to mean a baseball player. Then things
would change, I guess. But Realtor, like Yankee, is an enforced trademark,
servicemark... or whatever.
And because Realtor is a brand.... it is a proper noun. A New Yorker, a
Californian etc.
That's the way I see it anyway.
Regards,
Anthony Giorgianni
<Snip>
"Mike Barnes" <mi...@senrab.com> wrote in message
news:ZEKFA5A3...@mydomain.invalid...
> What makes the idea of "Realtor" seem so weird to me is the application
> of a trademarked word to a person. Does anyone know of any other
> trademarked or otherwise protected word that means a person? I don't
> count a phrase that incorporates an ordinary name for a person, such as
> "Avon lady" or "Chartered Accountant", it has to be a single word. I
> can't think of any other than "Realtor".
>
> --
> Mike Barnes
Anthony Giorgianni
interesting question. But this is an English usage newsgroup after all..
The question is: Is it proper usage to write "realtor" with a small "r?"
I don't know who makes the rules - I guess the dictionaries, the newspapers
and magazines. If they all begin to agree, then I suppose it would pass into
common usage.
But it is important to realize, I think, that using the word this way may be
doing a disservice in that people increasingly are forgetting that there is
a distinction between a real estate agent and one that is a member of the
leading real estate agents' professional organization. I remembered this
discussion when my sister told me just this morning that she just got the
name of a "realtor." I asked her if the person is really a Realtor or just
a real estate agent. She said she did not know there was a difference.
On the other hand, I understand that it looks kind of odd if you write:
The detective turned and said: "Lou, we've confirmed that the body found in
the Dumpster is that of a local Realtor. She apparently unsuccessfully tried
to stop the bleeding with Band-Aids. It looks as though she found a Magic
Marker and left a Post-It note about who done it: A Teamster and a
Roto-Router man! By the way, is that blood or Jell-O?"
Regards,
Anthony Giorgianni
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
news:c7482783.02080...@posting.google.com...
Anthony Giorgianni
Regards,
Anthony Giorgianni
"Anthony Giorgianni" <agnew...@att.net> wrote in message
news:avk39.19300$pg2.1...@bgtnsc05-news.ops.worldnet.att.net...
Anthony Giorgianni
of a sentence :o)
<snip>
Skitt
> Sorry, I messed up there. Teamster is lower case - except at the
> beginning of a sentence :o)
And it is "Roto-Rooter".
Anthony Giorgianni
before) and then forgot anyway. My poor dumb brain.
Regards,
Anthony Giorgianni
"Skitt" <sk...@earthlink.net> wrote in message
news:aikmkn$14qi2l$1...@ID-61580.news.dfncis.de...
Apurbva Chandra Senray
> > Are you saying that unless the author intends to portray the
> > character as the kind of person who would say "realtor" instead of
> > "real estate agent," then the author should always have the character
> > say "real estate agent"?
>
> I don't know how I can make this simpler to understand. I'm saying that
> the use of "realtor" vs "real estate agent" in a novel is such a trivial
> point that no writer should bother about considering it as a deliberate
> characterization device. It's not trivial in a non-fiction piece since
> it's a point of style. It is trivial in a fictionalized accounting of
> conversation. You don't flesh out a fictional character with this
> distinction.
You haven't answered my question.
A very large number of Americans use the word "realtor" as a
generic synonym for "real-estate agent." To have a character say
"realtor" is no different from having him or her say "kleenex" or
"frisbee" instead of "facial tissue" or "plastic flying disk." There
is nothing unnatural or distracting about an ordinary speaker of
colloquial American English using the word "realtor" in this way. Yes,
the National Association of Realtors would object. Yes, a Realtor
would object. Yes, you would notice the usage. But this is a realistic
element of colloquial speech.
Given this, let me repeat my question -- Are you insisting that
authors not have their characters use the word "realtor" in this
manner?
Tony Cooper
news:c7482783.02080...@posting.google.com...
news:<aigvpp$14908v$1...@ID-113505.news.dfncis.de>...
>
>
> > > Are you saying that unless the author intends to portray the
> > > character as the kind of person who would say "realtor" instead of
> > > "real estate agent," then the author should always have the
character
> > > say "real estate agent"?
> >
> > I don't know how I can make this simpler to understand. I'm saying
that
> > the use of "realtor" vs "real estate agent" in a novel is such a
trivial
> > point that no writer should bother about considering it as a
deliberate
> > characterization device. It's not trivial in a non-fiction piece
since
> > it's a point of style. It is trivial in a fictionalized accounting
of
> > conversation. You don't flesh out a fictional character with this
> > distinction.
>
> You haven't answered my question.
I think I have. One of three things are happening: I haven't answered
the question, I haven't answered the question the way you would like it
answered, or you aren't making any effort to understand my reply. The
second two possibilities are gaining ground.
> A very large number of Americans use the word "realtor" as a
> generic synonym for "real-estate agent." To have a character say
> "realtor" is no different from having him or her say "kleenex" or
> "frisbee" instead of "facial tissue" or "plastic flying disk."
How does one say "kleenex" or "frisbee" differently than "Kleenex" or
"Frisbee"? The word "realtor" is a different word than "real estate
agent", and is said differently. If a person says "realtor", how do you
know they are not saying "Realtor"?
There
> is nothing unnatural or distracting about an ordinary speaker of
> colloquial American English using the word "realtor" in this way. Yes,
> the National Association of Realtors would object. Yes, a Realtor
> would object. Yes, you would notice the usage. But this is a realistic
> element of colloquial speech.
>
> Given this, let me repeat my question -- Are you insisting that
> authors not have their characters use the word "realtor" in this
> manner?
How could I insist that authors do anything? I can only say that if I
were an author that I would not deliberately misuse a word unless I
wanted a character to be distinctive by misusing words, and the misuse
would be part of a line spoken by a character. I would not, for
example, write "Susan was a housewife and part-time realtor". I would
not write "Susan pulled a kleenex from her pocketbook". I might have a
character say "I done shot the realtor", but what an author has a
character say is completely different. What, and how, a character says
something is part of characterization and not about correct usage.
As far a "realtor" being a realistic element of colloquial speech....it
is to some and not to others. It shouldn't be to anyone in this group
since this group focuses on *correct* usage. However you excuse the use
of the word, it is incorrect. This group does not accept or forgive
misuses of words.
Evan Kirshenbaum
> "Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
> news:c7482783.02080...@posting.google.com...
>
> As I understand it, the use must be a use in commerce in
> > connection with the sale, distribution, or advertising of goods or
> > services in a manner likely to confuse, to cause mistake, or to
> > deceive. All these elements must be present.
>
> How can all elements be present if there are "or"s in the list of
> elements? I think you must mean that "sale, distribuiton or
> advertising of good or services" is one element made up from any of
> the items in that group of words. Same with confuse, cause mistake
> or deceive. Any one of the three is an element, but all three need
> not be present.
I read the claim as that "the use must be"
1. a use in commerce
2. in connection with the sale, distribution, or advertising of
goods or services
3. in a manner likely to confuse, to cause mistake, or to deceive.
My (non-lawyer) understanding of the law is that only (3) is actually
required to be infringing, but that (1) and (2) are factors when it
comes to deciding remedies.
> > Basically, what this means is that you must be a competitor of the
> > mark holder trying to pass your product of under his trademark.
That doesn't sound right. Non-commercial use can certainly be
infringing if it leads the consumer to believe that the trademark
holder endorses something, for example. You probably won't get more
than a cease-and-desist and a public retraction out of it, but it
would still be actionable.
> I wish you hadn't told me that you were a lawyer. For an ordinary
> person to conclude from what you have said in the previous paragraph
> basically means the above is bad enough. For a lawyer to do this is
> astounding. How can you conclude that only a competitor can be
> guilty of trademark infringement?
>
> > A newspaper article or (non-advertisement) photograph does not fit
> > this definition.
>
> No, it doesn't. But I thouroughly disagree with your definition.
> One of the most well known instances of trademark enforcement is in
> the soft drink area. If a restaurant patron asks for a "Coke", and
> is brought a Pepsi or other brand of soft drink, Coca Cola will
> insist that the restaurant server say something like "We don't serve
> Coca Cola. Will Pepsi do?" Pepsi does the same if the reverse is
> true. The restaurant is not a competitor of either Coca Cola or
> Pepsi. The action by Coke or Pepsi isn't against the other firm,
> but against the restaurant.
Note that this meets all three branches of the above test: it's in
commerce, in connection with a sale, and likely to confuse the
customer about what is being provided. It's a third party passing a
competitor's product under your trademark. And the third party is a
probably licensee of your competitor. Has Coke ever gone after
somebody who bought their Pepsi at the local store, or is it only
against restaurants who sign contracts directly with Pepsi as a
supplier? I'd guess that the latter arrangement might make the
restaurant a legal agent of your competitor.
> > > If a columnist in a newspaper uses a trademarked term
> > > generically - like Ann Landers writing "stuff your bra with
> > > kleenex to attract him", then she'd probably get a firm letter
> > > suggesting that she either write Kleenex or tissue.
> >
> > "Firm letters" are sent out at the drop of the hat. They are
> > not conclusory on any issue.
>
> Are you saying then, that the firm letter is without legal basis?
> That the firm letter is the resort of the lawyer that has no law on
> his side? Is the firm letter blowing smoke? Or, is it a way for
> the lawyer to resolve an issue with the minimum amount of action?
It's certainly the last. Many people give in when threatened. That
doesn't mean that it's always a bluff.
> Are you saying, as a lawyer that has been exposed to trademark law,
> that Ann Landers (or the current writer of the column) is correct in
> writing "kleenex" in the above example? Are you saying that
> Kimberley-Clark is entirely without basis in requesting - even
> demanding - that the word be written "Kleenex" or the word "tissue"
> be used?
As a non-lawyer that has been exposed to a fair bit of intellectual
property law (although far more on patents and copyright than on
trademark), I'd say that Kimberley-Clark has an excellent basis for
requesting - even demanding - that the change. And also that if it
were to come to trial that they would probably either lose or get a
nominal victory. My understanding is that the law says that in order
to keep your trademark, you must show a pattern of objecting when such
things happen. You don't have to win, but you have to demonstrate
that you do not accept that the word has become generic. I'd guess
that the last thing you'd want is for it to actually go to trial,
because then you'd run the risk of a judge deciding, based on exactly
such use, that it *had* become generic, and you would no longer be
able to prevent your competitors from marketing their products under
your name. But you have to object.
I don't, however (and bringing this back a bit to English usage)
believe that this is a case of trademark *infringement*, but merely
improper use. There's no commercial context regarding the mark
itself. (It's not being used to label something being sold or to
advertise something being sold.) There's no indication that it's
being used to refer specifically to a product other than the one
produced by Kimberley-Clark. Indeed, there's no indication beyond the
lack of capitalization that the writer did not in fact have in mind
specifically the product produced by Kimberley-Clark.
--
Evan Kirshenbaum +------------------------------------
HP Laboratories |Code should be designed to make it
1501 Page Mill Road, 1U, MS 1141 |easy to get it right, not to work
Palo Alto, CA 94304 |if you get it right.
kirsh...@hpl.hp.com
(650)857-7572
Richard Maurer
Okay, now we're being silly, but it *does* suggest a contest...can
<< [Mark Barratt]
Yes, I can. But since it would give away an answer in the upcoming
(very soon, now) Summer Doldrums Competition, I won't mention it. >>
In honor of the pre-select and pre-order thread,
I hereby pre-answer this SDC question with 'Susan B. Anthony'.
-- ---------------------------------------------
Richard Maurer To reply, remove half
Sunnyvale, California of a homonym of a synonym for also.
----------------------------------------------------------------------
Raymond S. Wise
"Evan Kirshenbaum" <kirsh...@hpl.hp.com> wrote in message
news:4re93m...@hpl.hp.com...
> "Tony Cooper" <tony_co...@yahoo.com> writes:
>
> > "Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
> > news:c7482783.02080...@posting.google.com...
> >
> > As I understand it, the use must be a use in commerce in
> > > connection with the sale, distribution, or advertising of goods or
> > > services in a manner likely to confuse, to cause mistake, or to
> > > deceive. All these elements must be present.
> >
> > How can all elements be present if there are "or"s in the list of
> > elements? I think you must mean that "sale, distribuiton or
> > advertising of good or services" is one element made up from any of
> > the items in that group of words. Same with confuse, cause mistake
> > or deceive. Any one of the three is an element, but all three need
> > not be present.
>
> I read the claim as that "the use must be"
>
> 1. a use in commerce
> 2. in connection with the sale, distribution, or advertising of
> goods or services
> 3. in a manner likely to confuse, to cause mistake, or to deceive.
>
> My (non-lawyer) understanding of the law is that only (3) is actually
> required to be infringing, but that (1) and (2) are factors when it
> comes to deciding remedies.
>
I can think of two cases where only number (3) applied, as far as I can see.
One is a recent case, where an opponent of abortion lost a trademark
infringement suit and had to surrender some URLs. Part of the story is told
in the following:
From
http://www.usatoday.com/tech/news/techpolicy/2002-07-19-cybersquatting_x.htm
[quote]
07/19/2002 - Updated 12:30 PM ET
Abortion activist sued for cybersquatting
MINNEAPOLIS (AP)--Some of the most-high profile consumer and media companies
in the nation are suing a South St. Paul man to stop him from using their
trademarks to direct people on the Internet to anti-abortion Web sites. The
joint lawsuit filed in U.S. District Court in Minneapolis on Thursday set up
a fight over the rights of companies to protect valuable trademarks vs. the
right to free speech.The Washington Post, Coca-Cola, McDonald's and PepsiCo
joined in the lawsuit against William S. Purdy Sr., a former railroad
engineer and longtime abortion opponent.
[end quote]
Purdy lost the case. You might be able to see more about the case by going
to www.pioneerplanet.com or www.startribune.com and doing a search for
"Purdy".
In another case, *The National Lampoon* lost a trademark-infringement case
as a result of having published a fake VW Beetle advertisement which
pretended to have Edward Kennedy endorsing the Beetle--if he had had one, it
would have floated at the time of his car accident and "I would be
President." This fake ad was in a National Lampoon special album, that is, a
publication with no real advertising whatsoever, yet National Lampoon lost
the case. The big mistake the designers of the fake ad made, it seems, was
in using the actual VW logo.
--
Raymond S. Wise
Minneapolis, Minnesota USA
E-mail: mplsray @ yahoo . com
Apurbva Chandra Senray
> How can all elements be present if there are "or"s in the list of
> elements? I think you must mean that "sale, distribuiton or advertising
> of good or services" is one element made up from any of the items in
> that group of words. Same with confuse, cause mistake or deceive. Any
> one of the three is an element, but all three need not be present.
- Sale, distribution, or advertising
- of goods or services
- likely to confuse, cause mistake or deceive
> Basically, what this
> > means is that you must be a competitor of the mark holder trying to
> > pass your product of under his trademark.
>
> I wish you hadn't told me that you were a lawyer. For an ordinary
> person to conclude from what you have said in the previous paragraph
> basically means the above is bad enough. For a lawyer to do this is
> astounding. How can you conclude that only a competitor can be guilty
> of trademark infringement?
This was an attempt to state the issue in a simplified manner.
Clearly it was a mistake to do so.
> > A newspaper article or
> > (non-advertisement) photograph does not fit this definition.
> No, it doesn't. But I thouroughly disagree with your definition.
Look, in the column in question the newspaper is not selling
tissues, is not advertising tissues, and is not distributing tissues.
They are not using the mark in connection with the sale of the type of
goods for which the Kleenex mark is registered. There is no way what
they are doing can constitute infringement.
> One of the most well known instances of trademark enforcement is in
> the soft drink area. If a restaurant patron asks for a "Coke", and is
> brought a Pepsi or other brand of soft drink, Coca Cola will insist that
> the restaurant server say something like "We don't serve Coca Cola.
> Will Pepsi do?" Pepsi does the same if the reverse is true. The
> restaurant is not a competitor of either Coca Cola or Pepsi. The action
> by Coke or Pepsi isn't against the other firm, but against the restaurant.
The restaurant, by selling Pepsi, _is_ in competition with Coke.
If they give you Pepsi without telling you it's Pepsi when you asked
for Coke, they are selling a competitor's product in connection with
the mark. That is infringement. They are using the mark in connection
with the sale of goods in a manner likely to cause confusion. They are
associating a mark with a product and then selling you that product.
> Are you saying then, that the firm letter is without legal basis? That
> the firm letter is the resort of the lawyer that has no law on his side?
> Is the firm letter blowing smoke? Or, is it a way for the lawyer to
> resolve an issue with the minimum amount of action?
Cease-and-desist letters regarding trademark issues are very
often letters in which, if the issue were actually to go to trial, the
trademark holder would lose. The letters are sent usually to bully
individuals with the threat of a lawsuit.
> Ann Landers (or the current writer of the column) is correct in writing
> "kleenex" in the above example?
I won't say whether she is correct. I will say that she has not
committed trademark infringement and that no court would issue an
order to make her stop.
> Are you saying that Kimberley-Clark is entirely without basis in
> requesting - even demanding - that the word be written "Kleenex" or the
> word "tissue" be used?
They are required by law to demand "correct" usages of their
trademark. The people of whom they make that demand are under no legal
obligation to comply with such a demand unless what they are doing
constitutes infringement.
Apurbva Chandra Senray
> I read the claim as that "the use must be"
>
> 1. a use in commerce
> 2. in connection with the sale, distribution, or advertising of
> goods or services
> 3. in a manner likely to confuse, to cause mistake, or to deceive.
>
> My (non-lawyer) understanding of the law is that only (3) is actually
> required to be infringing, but that (1) and (2) are factors when it
> comes to deciding remedies.
Actually, infringement requires the presence of all the elements
in Section 1114.
> > > Basically, what this means is that you must be a competitor of the
> > > mark holder trying to pass your product of under his trademark.
>
> That doesn't sound right. Non-commercial use can certainly be
> infringing if it leads the consumer to believe that the trademark
> holder endorses something, for example. You probably won't get more
> than a cease-and-desist and a public retraction out of it, but it
> would still be actionable.
> Note that this meets all three branches of the above test: it's in
In fact, as you say, they are required by trademark law to demand
such a change. The fact that they might make such a demand has no
bearing on the consideration of whether the use is infringing.
> I don't, however (and bringing this back a bit to English usage)
> believe that this is a case of trademark *infringement*, but merely
> improper use.
And there is no legal remedy for improper use, only
infringement.
> There's no commercial context regarding the mark
> itself. (It's not being used to label something being sold or to
> advertise something being sold.) There's no indication that it's
> being used to refer specifically to a product other than the one
> produced by Kimberley-Clark.
Exactly, the use must create a likelihood of confusion with
regard to the origin of the goods. In the case of the newspaper
column, the Kleenex mark is not being used in connection with any sale
of goods about whose origin confusion might be caused.
Tony Cooper
>
> > "Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
> > news:c7482783.02080...@posting.google.com...
> >
> > As I understand it, the use must be a use in commerce in
> > > connection with the sale, distribution, or advertising of goods or
> > > services in a manner likely to confuse, to cause mistake, or to
> > > deceive. All these elements must be present.
> >
> > How can all elements be present if there are "or"s in the list of
> > elements? I think you must mean that "sale, distribuiton or
> > advertising of good or services" is one element made up from any of
> > the items in that group of words. Same with confuse, cause mistake
> > or deceive. Any one of the three is an element, but all three need
> > not be present.
>
> I read the claim as that "the use must be"
>
> 1. a use in commerce
> 2. in connection with the sale, distribution, or advertising of
> goods or services
> 3. in a manner likely to confuse, to cause mistake, or to deceive.
That's what I said. In your breakdown, #3 is one element and not three.
I don't know, but I don't think a restaurant that serves Coke or Pepsi
is a licensee. They just buy the product from a distributor. No
agreement is required to buy and sell the product. There are
some places that have exclusive agreements for the sale of one brand in
exchange for advertising tie-ins, but I don't think that's being a
licensee.
Has Coke ever gone after
> somebody who bought their Pepsi at the local store, or is it only
> against restaurants who sign contracts directly with Pepsi as a
> supplier? I'd guess that the latter arrangement might make the
> restaurant a legal agent of your competitor.
The restaurants don't necessarily sign contracts. They may just carry
one brand, or they may carry one brand with a contract that involves
advertising tie-ins. I can't see how the store issue is a
consideration. In a restuarant, the beverage is not labeled when
delivered to the table. It's pretty obvious what the brand is in a
store.
>
> I don't, however (and bringing this back a bit to English usage)
> believe that this is a case of trademark *infringement*, but merely
> improper use.
I agree. "Infringement" was used incorrectly. See, once a person knows
they are talking to a lawyer, fifty-cent words just jump out.
Tony Cooper
>
> Look, in the column in question the newspaper is not selling
> tissues, is not advertising tissues, and is not distributing tissues.
> They are not using the mark in connection with the sale of the type of
> goods for which the Kleenex mark is registered. There is no way what
> they are doing can constitute infringement.
I was incorrect to use "infringement". It was just misuse of a
trademarked name. Still, it is a violation of the trademark laws. It
is wrong, and Kimberly-Clark has cause to ask the writer to not do it
again.
> Cease-and-desist letters regarding trademark issues are very
> often letters in which, if the issue were actually to go to trial, the
> trademark holder would lose. The letters are sent usually to bully
> individuals with the threat of a lawsuit.
>
Then, sir, I'll use your style of questioning. Are cease-and-desist
letters then the resort of lawyers that don't have the law on their
side? Are they false and misleading because they make a threat that is
not pursuable? Are they completely bogus?
If not, then I'll conclude that they're a short-cut in the process that
brings the law to the attention of the violator. I'll conclude that the
letter refers to a real law and a real violation. I'll conclude that
lawsuits are not always lost on the basis of law, but often lost on the
basis of failure to present the law correctly. I'll conclude that if
many cases are won or lost in any area of law, that this has nothing
whatsoever to do with the soundness of the law in question.
> > Ann Landers (or the current writer of the column) is correct in
writing
> > "kleenex" in the above example?
> I won't say whether she is correct. I will say that she has not
> committed trademark infringement and that no court would issue an
> order to make her stop.
I used "infringement" incorrectly. It should be violation. I disagree
that no court would issue an order. A court issued an order for Bob
Snow's "Church Street Station" to declare to the patrons the brand of
soft dring being served. Coca Cola wrote the firm letters, and Bob took
offense and fought it. He lost. I'm not sure if "landmark" is the
correct word, but it was a case that had quite a bit of impact on the
restaurant industry in this area. Church Street Station (at that time)
was a major attraction, and it was almost like Disney being involved.
Why not just say she is "incorrect"? Why waffle? Usage of the word in
this manner is either right or wrong. You've had a chance to review the
reasons, but you still waffle. Would you be as insistant on waffling if
it was a word that you didn't misuse yourself?
--
Tony Cooper aka: Tony_Co...@Yahoo.com
Provider of Jots & Tittles
> > Are you saying that Kimberley-Clark is entirely without basis in
Tony Cooper
> And there is no legal remedy for improper use, only
> infringement.
Yes there is. I won't try to slip in a legal term I'm not sure about,
but try a cease and desist order. I want to say "estoppal", but I'm not
sure it's right. The court has the power to remedy improper use by
ordering the party to stop.
> Exactly, the use must create a likelihood of confusion with
> regard to the origin of the goods. In the case of the newspaper
> column, the Kleenex mark is not being used in connection with any sale
> of goods about whose origin confusion might be caused.
You keep doing this. A violation of this sort has nothing to do with
selling a product. The sale of a product using a trademark violation
may be a basis for recovery, but it has nothing to do with the
violation. The appearance alone is the violation, and the result of the
appearance relates to damages.
Tony Cooper
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
Just a comment on this discussion....I feel that I'm correct in this
discussion on trademarks. I've made errors (specifically, the use of
the word "infringement"), but I think I'm basically correct in what I've
written. I don't look at this as any attack on Mr Senray, and I don't
want anyone to feel that there's anything personal about the comments.
It's a dispassionate discussion about two views on usage. Nothing more.
Readers should note that there have not been any ad hominem comments on
either side. That's as it should be.
Jerry Friedman
> That's not right, Jerry. Maybe I wasn't clear. My former newspaper, as most
> newspapers, DO capitalize trademarks. (The first letter, not the whole
> thing). They do not use the trademark or service mark symbol.
No, I meant your former newspaper doesn't write "REALTOR" the way
those people would like--though it also doesn't write "realtor" the
way I suggested.
>
> I think that is the correct way too. A proper noun - the name of a product
> or service - should be capitalized. Would you write jeep or ford or at&t or
> roto-rooter man .. er.. person?
Possibly the last, if there are other brands but people generically
them roto-rooters. (I don't know whether this happens.) If I were
quoting somebody who said "realtor" to mean any real-estate agent, I
wouldn't capitalize it. If I it's being used to mean a member of the
National Association of REALTORS (TM), I'd consider it.
...
--
Jerry Friedman
Skitt
> "Apurbva Chandra Senray" wrote:
>> And there is no legal remedy for improper use, only
>> infringement.
>
> Yes there is. I won't try to slip in a legal term I'm not sure about,
> but try a cease and desist order. I want to say "estoppal", but I'm
> not sure it's right.
Be sure. The word you tried to write is "estoppel", and to my knowledge it
has to do with a different thing altogether.
Apurbva Chandra Senray
> > > If a columnist in a newspaper uses a trademarked term generically -
> > > like Ann Landers writing "stuff your bra with kleenex to attract
> > > him
To take this step-by-step through 15 U.S.C. Section 1114 --
- use in commerce - It's not a use in commerce because it's not
being used to identify any particular goods being offered for sale.
Yes, a newspaper is a commercial enterprise, but, the use of the
trademarked term is not being used to identify the item being sold,
i.e., the newspaper.
- any reproduction, counterfeit, copy, or colorable imitation of
a registered mark - Yes, it is an exact duplication of a registered
mark.
- in connection with the sale, offering for sale, distribution,
or advertising of any goods or services - The use is not in connection
with the sale, distribution, advertising of any services. Yes, a
newspaper is being sold, and, yes, there are several things being
advertised in the newspaper, but the use of the trademark is not
connected to the sale or advertising of any of these items. Even if
there were ads for some other brands of tissues or, indeed, Kleenexes
somewhere in the newspaper, the use of the term "Kleenex" in this
column has no relationship to those uses.
- on or in connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive - Again, this use of the
work "Kleenex" in the column is not related to the sale of any goods
such that a consumer might be misled as to the origin of the goods.
Yes, the newspaper is being sold, but the newspaper is not being sold
in connection with the use of the term "Kleenex."
Anthony Giorgianni
Xerox too? What if someone said a "Boeing" to describe a generic bomber
aircraft? Even though most people would recognize that as a brand, if the
speaker meant in the generic sense, would you consider it proper usage to
print it in lower case?
Regards,
Anthony Giorgianni
<snip>
Tony Cooper
"Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
> To take this step-by-step through 15 U.S.C. Section 1114 --
>
Apurbva, you're wrong. Wrong, wrong, wrongity wrong. The usage of
"kleenex" instead of "Kleenex" is wrong in a newspaper column (in the
instance used an example). Kimberly-Clark has the right to ask, demand,
or insist that the error not be repeated. It's a violation of a
trademarked term. The appearance of the word incorrectly used is the
violation.
Your continued claim that the error must be in conjunction with the
attempt to sell a product is chasing the wrong hare. We've gone over it
enough times that there's no use going over it again. I don't accept
what you say and you don't accept what I say. If you ever get a client
that is being sued, bullied by firm letters, or otherwise knee-deep in
legal trouble over misuse of a trademarked term....refer the case.
Evan Kirshenbaum
> "Apurbva Chandra Senray" <acse...@yahoo.com> wrote in message
>
> > To take this step-by-step through 15 U.S.C. Section 1114 --
>
> Apurbva, you're wrong. Wrong, wrong, wrongity wrong. The usage of
> "kleenex" instead of "Kleenex" is wrong in a newspaper column (in
> the instance used an example). Kimberly-Clark has the right to ask,
> demand, or insist that the error not be repeated.
Glendower: I can call spirits from the vasty deep.
Hotspur: Why, so can I, or so can any man;
But will they come when you do call for them?
Kimberley-Clark has the right to ask, demand, or insist that the use
not be repeate. They also have the right to ask, demand, or insist
that the editor wear a pink tutu and skip through the halls singing
"I'm a little teapot".
What my reading of the statutes says is that they don't have any
reason to expect relief from the courts, including injunctive relief.
> It's a violation of a trademarked term. The appearance of the word
> incorrectly used is the violation.
Can you point to something in 15 USC section 22 that says this? My
reading, as I pointed out in another article is that not only does
Kimberley-Clark have the right to ask, demand, and insist that the
newspaper stop, but they have an obligation to, lest it appear that
such use is with their consent, which could cause them to lose the
mark, should one of their competitors challenge it. But that doesn't
make the use itself a violation.
--
Evan Kirshenbaum +------------------------------------
HP Laboratories |...as a mobile phone is analogous
1501 Page Mill Road, 1U, MS 1141 |to a Q-Tip -- yeah, it's something
Palo Alto, CA 94304 |you stick in your ear, but there
|all resemblance ends.
kirsh...@hpl.hp.com | Ross Howard
(650)857-7572
Harvey V
Senray) wrote:
> Evan Kirshenbaum <kirsh...@hpl.hp.com> wrote in message
> news:<4re93m...@hpl.hp.com>...
-snip-
>> I don't, however (and bringing this back a bit to English usage)
>> believe that this is a case of trademark *infringement*, but
>> merely improper use.
>
> And there is no legal remedy for improper use, only
> infringement.
>
>> There's no commercial context regarding the mark
>> itself. (It's not being used to label something being sold or to
>> advertise something being sold.) There's no indication that it's
>> being used to refer specifically to a product other than the one
>> produced by Kimberley-Clark.
>
> Exactly, the use must create a likelihood of confusion with
> regard to the origin of the goods. In the case of the newspaper
> column, the Kleenex mark is not being used in connection with any
> sale of goods about whose origin confusion might be caused.
Sliding a bit OT, is there a distinction in US law between "copyright
infringement" and "passing off"?
The reason I ask is that I think this distinction exists in the UK, as
I recall a couple of recent cases -- within the last few years -- of
new magazines which looked very much like other, established magazines.
There wasn't an infringement of anything subject to copyright: the
typeface and cover layouts were not copyrighted, and the names were
different. Nonetheless, in at least one of the cases the general
appearance was deemed to be sufficienty similar that it could lead to
confusion on the part of consumers, and either damages or changes were
ordered by the courts, on the basis of "passing off".
Do the two offences exist separately in US law?
--
Cheers,
Harvey
Skitt
> "Tony Cooper" writes:
>> "Apurbva Chandra Senray" wrote:
>>> To take this step-by-step through 15 U.S.C. Section 1114 --
>>
>> Apurbva, you're wrong. Wrong, wrong, wrongity wrong. The usage of
>> "kleenex" instead of "Kleenex" is wrong in a newspaper column (in
>> the instance used an example). Kimberly-Clark has the right to ask,
>> demand, or insist that the error not be repeated.
>
> Glendower: I can call spirits from the vasty deep.
> Hotspur: Why, so can I, or so can any man;
> But will they come when you do call for them?
>
> Kimberley-Clark has the right to ask, demand, or insist that the use
> not be repeate. They also have the right to ask, demand, or insist
> that the editor wear a pink tutu and skip through the halls singing
> "I'm a little teapot".
They may also insist that you spell their company's name correctly, as Tony
has done above.
> ... My reading, as I pointed out in another article is that not only does
> Kimberley-Clark have the right to ask, ...
Maybe you are talking about a fictitious company ...
Tony Cooper
"Evan Kirshenbaum" <kirsh...@hpl.hp.com> wrote in message
> Can you point to something in 15 USC section 22 that says this? My
> reading, as I pointed out in another article is that not only does
> Kimberley-Clark have the right to ask, demand, and insist that the
> newspaper stop, but they have an obligation to, lest it appear that
> such use is with their consent, which could cause them to lose the
> mark, should one of their competitors challenge it. But that doesn't
> make the use itself a violation.
I'm not good at researching the law, but if someone has the "right" - as
you agree they do - then the right must be based on something. If it's
not a violation, then why would they have a right? If you are better at
researching the law, then find a cite that gives K-C the right to stop
something that is not in some sort of violation.
Perhaps your quibble has to do with the use of the word "violation"? If
the misuse of a trademark is not a violation of the intent of the
trademark laws, then what is it?
Evan Kirshenbaum
> "Evan Kirshenbaum" <kirsh...@hpl.hp.com> wrote in message
>
> > Can you point to something in 15 USC section 22 that says this? My
> > reading, as I pointed out in another article is that not only does
> > Kimberley-Clark have the right to ask, demand, and insist that the
> > newspaper stop, but they have an obligation to, lest it appear that
> > such use is with their consent, which could cause them to lose the
> > mark, should one of their competitors challenge it. But that doesn't
> > make the use itself a violation.
>
> I'm not good at researching the law, but if someone has the "right"
> - as you agree they do - then the right must be based on something.
> If it's not a violation, then why would they have a right? If you
> are better at researching the law, then find a cite that gives K-C
> the right to stop something that is not in some sort of violation.
I didn't say that they had the right to stop something. I said that
they had the right to insist that something stop. They have the right
to threaten to sue if it is not stopped. They probably even have the
right to sue, although you might start getting into "harassment"
territory. I don't see any reading of the law, however, that would
indicate that they would get any remedy, even an injunctive one, if
they were in fact to sue.
> Perhaps your quibble has to do with the use of the word "violation"?
> If the misuse of a trademark is not a violation of the intent of the
> trademark laws, then what is it?
I believe that the Coke/Pepsi case is, in the wording of 15 USC
1064(3), an instance of a mark
being used ... so as to misrepresent the source of the goods or
services on or in connection with which the mark is used.
This, per se, does not appear to be illegal (or at least not in and of
itself damaging to Coke, as opposed to the patron), but Coke has an
obligation to object, to ensure that this is not perceived as being
done "with the permission of ... the registrant". If this were to
happen, Coke could lose its mark.
In the Kimberly-Clark case, it is a generic use of a term which K-C
has a vested interest in not seeing become generic as "The primary
significance of the registered mark to the relevant public". That is,
it's okay if people perceive a word as generic, as long as, primarily,
they think of it in terms of the mark owner's product. By objecting
publicly, K-C put in front of the public the fact of their specific
product, thereby strengthening their claim. By threatening, they may
convince somebody to stop diluting their claim by reinforcing a
generic reading. But an actual claim based on dilution may only be
made "against another person's commercial use in commerce of a mark or
trade name" 15 USC 1125, where "use in commerce" is defined as a
situation in which
it is placed in any manner on the goods or their containers or the
displays associated therewith or on the tags or labels affixed
thereto, or if the nature of the goods makes such placement
impracticable, then on documents associated with the goods or
their sale, and the goods are sold or transported in commerce.
I'd say this clearly doesn't cover use in a newspaper.
A caveat, though. This is based on one non-lawyers reading of the
statute law. Case law may say something different.
--
Evan Kirshenbaum +------------------------------------
HP Laboratories |So when can we quit passing laws and
1501 Page Mill Road, 1U, MS 1141 |raising taxes? When can we say of
Palo Alto, CA 94304 |our political system, "Stick a fork
|in it, it's done?"
kirsh...@hpl.hp.com | P.J. O'Rourke
(650)857-7572