Hon Bandit from Welcome to Baltimore, Hon
Copyright, trademark, and patents are legal tools designed to allow an individual or business to profit from their executed ideas. But they are not always used this way. From companies that exist to buy up patents and sue infringes to companies that spend big money to swaying legislation to horde creations more than a generation old these legal tools are being leveraged in ways not originally imagined. Questions arise about the way we protect the ownership of good ideas.
How much right does a third party have to monopolize the inventions of an individual, and for what reasons may they do so?
Are there things that belong to all of us that no one should have the right to monopolize?
Citizens of Baltimore seem to think that answer to that last one is yes. In early December, The Baltimore Sun, ran a story about Denise Whiting owner of Cafe Hon, Honbar, Hontown and organizer of Honfest. In addition to the names of these businesses, Denise Whiting has registered HON as her personal trademark.
There is just one problem; the word hon is a part of Baltimore’s native language, meaning not a restaurant, bar, trinket shop or even a festival. For generations, Hon is how you address someone; strangers, friends, or family. Denise Whiting has made a great deal of money using that word. She has also taken the liberty of seizing HON related merchandise from other stores and previewing and approving a new publicity campaign of the Maryland Transit Authority because it used the word Hon. She has said she will not interfere with personal use of the word as long as it does not represent Baltimore badly. Despite her apparent veto power over all things hon, Denise is getting a lot of back talk from Baltimore.
Reactions have been intense, including one Baltimore-centric site that is planning to put their merchandise where their mouth is. Bruce Goldfarb of Welcome to Baltimore, Hon has written a HON manifesto that suggests the site may sell HON merchandise simply to take Whiting to court and expose that: “Denise Whiting does not have a valid trademark on “hon.” She is a bully, trampling the linguistic commons.”
Blogger, lawyer and adjunct professor James B. Astrachan, Esq. agrees that Whitting’s position is not legally strong.
But Whiting, like many others has used the threat of legal action to get what she wants without having to take legal action. If the threat of a law suit is all it takes to curtail free speech than the decision to grant a trademark or patent is a critical one. Denise Whiting shouldn’t have the right to keep anyone from using any words because she does not want to tolerate a critical view of a major metropolitan area. That kind of criticism is important for a city like Baltimore that has some room for growth. Greater care in issuing a trademark and other rights to intellectual property may be just the cure.
What will ultimately become of the word HON and will this local fight have any impact on our growing need to redefine the scope of ownership? Only time and the courts will tell.
From a simple common sense standpoint it is difficult to understand how somebody could trademark a word such as hon which is in common usage. The article by James B. Astrachan (linked above) discusses how in order to trademark a generic word it must be escalated to the point where it comes to mean the source of a good. This explains why Apple can maintain its trademark because the word has become synonymous with their brand of products, but I agree with his assessment that hon does not qualify.
This post seems really interesting in conjunction with the one on Farmville. In that case, Zynga, Inc., is trying to protect their own brand of the Facebook “-villes.” However, Denise Whiting seems to be trying to protect her own branding, not of herself, but of the entire city of Baltimore. I think this is really telling in the statement that
To fix that comment, here’s what it should have said:
This post seems really interesting in conjunction with the one on Farmville. In that case, Zynga, Inc., is trying to protect their own brand of the Facebook “-villes.” However, Denise Whiting seems to be trying to protect her own branding, not of herself, but of the entire city of Baltimore. I think this is really telling in the statement that “She has said she will not interfere with personal use of the word as long as it does not represent Baltimore badly.” She doesn’t seem to have any commercial motives, or even selfish motives, other than that she wants to control the entire morality of her city. Which, in common sense, seems a bit extreme considering Baltimore has a population larger than 500,000. She seems almost like a patent troll of a different kind – the moralizing trademark troll. However, as noted above, the question of how valid this trademark is may prove a more striking difference between the two.
It should be noted that trademark is a limited doctrine. Her rights related to “Hon” may be very limited in nature. One needs to associate a trademark with a good or service. Other users can use the same word for non competing goods or services. TM can not prevent private noncommercial speech.
The more disturbing part is the power of threatening law suits, very frivolous or legally questionable claims have the power to change people practices. One major reason for this is the cost of litigation is so high, if it cost less to comply then to fight the claim businesses and indivisuals will often choose not defend their rights.