A recent news story used a word I had never heard before: Moke.  Being a lover of new words, I had to read more.  I got even more excited when I learned the story involved a trademark battle.

Apparently a “Moke” is a low-speed, open-air electric vehicle.  Two different dealers of these vehicles wanted to claim trademark rights in the Moke brand.  Of course a trademark grants you exclusive rights to use a term as a brand, so each party wanted this right.

Unfortunately, these parties both referred to their products as “Mokes,” so the relevant buyers came to know these products as “Mokes” and not as “Mokes electric vehicles.”

Genericide.  It’s happened time and time again.  Zipper, Escalator, Trampoline, Aspirin.  These are all former brands that the owners allowed to become the generic name for the item.  Now anyone can use these names, which means no one can use it exclusively.

In the case of Mokes, neither dealer can claim exclusive rights.  That means we all own the word “Moke.”  Would someone please call Merriam-Webster?

Pro tip: do NOT use your brand as a noun or verb.  Brands should be adjectives.

Fun Fact: Trademark law came into existence as a form of consumer protection.

Medieval consumers came to rely on the marks that were assigned to artisans by the guilds (i.e., “trade marks”). The original laws punished people who copied these “marks,” thereby trying to confuse consumers into buying their goods. “Likelihood of confusion” is still the standard applied today.

While the early laws were criminal (e.g., France would hang an innkeeper that sold common wine under a fraudulent label), today the laws are entirely civil. Companies sue other companies.

Given the policy behind trademark law, you might think a consumer could sue under the law. You would be wrong.

Recently consumer Rebecca Curtin brought an action against United Trademark Holdings to prevent UTH from acquiring a registration in the RAPUNZEL brand for dolls. Curtin explained that this registration would harm her as a consumer of dolls.  She alleged that the registration would decrease competition and increase prices for products related to that fictional character. (FWIW: Curtin is also a law professor.)

The Trademark Trial and Appeal Board held that Curtin was not a suitable person to bring this case. The TTAB followed precedent that states a plaintiff must claim harm to reputation or sales. In other words, trademark law does not allow consumers to sue companies. 

Even if they think they will be harmed.

And even if they are law professors.