Intellectual Property: US PTO on the verge of an outstanding error of judgement

The USA's growing imperialism through intellectual property laws is already causing huge concern in a wide range of industries around the world.

Because of inter-connected IP agreements, many countries agree to aid, if not actively recognise, trademarks and other IP registered overseas.

Until now, the two biggest battlegrounds have been the USA's insistence that a business process can be subject to a "patent" and similar protection given to US companies which have, to be polite, copied traditional medicines or crops and sought to enforce exclusive rights over them. These two areas have been central to many forthright discussions on a wide range of subjects: the USA uses its claims that it needs other countries to protect the intellectual property of its industries as a bargaining chip in trade and other negotiations.

US companies can, sometimes, be forceful in their demands over names: McDonalds, the hamburger chain, once famously tried to prevent a butcher called McDonald in Pitlochry, Scotland, whose long-established shop was called, unsurprisingly, McDonalds, to stop selling burgers: they claimed an exclusive right to associate the name with minced meat formed into "patties." The burger bar chain lost. They also lost in Australia where a vintner named his wine "McWilliams Big Mac Riesling." The Federal Court took the common sense view that while calling a rival burger a "Big Mac" would not be permitted, there was no risk of confusion or passing off by a someone mistaking a bottle of wine for a burger, with our without cheese. Again, in Malaysia, the US company lost its claim to prevent a takeaway using the name "McCurry."

It's this latter example that starts to raise the issues surrounding Facebook's intention to trademark the word "face." McDonalds thinks it has the exclusive right to the Mc... anything name.The Malaysian Federal Court made it plain that no such right exists.A similar decision was reached in the English High Court in a case brought by the US burger chain against McChina, a chain of takaways in London. They fought him for nine years. However, a US Federal court in the case of Quality Inns v McDonalds took the opposite view saying that prefixing Mc to a generic word gives it an immediate association with McDonalds. And McDonalds frightened off a small sandwich shop owner in Scotland who called her business McMunchies: she caved after the company's lawyers threatened her with legal action despite the fact that the shop did not sell burgers or chips and there was no similarity in branding.

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The company lost in Denmark: a hotdog seller liked McAllen whisky and liked the name so he wrote to the distillers and asked if they would mind if he named his hot dog business McAllen. they said no: McDonalds sued him, in Denmark, and lost.

But it was semi-successful against Norman McDonald who had, as part of his business, a "country drive in." He argued that as his name was McDonald, he ran a country drive in and it sold hamburgers, there could be no objection to his business name of "McDonald's Hamburgers, Country Drive-Inn." But he did rather take the mickey by adopting a pastiche of the famous golden arches. The court ordered him to remove the sign and to rename his business to "Norman McDonald's Hamburgers, Country Drive-Inn."

Facebook's trademark claim is expressed thus: " "telecommunication services, namely providing online chat rooms and electronic bulletin boards for transmission of messages among computer users in the field of general interest and concerning social and entertainment subject matter, none primarily featuring or relating to motoring or to cars."

Didn't we all used to call that "face time" in the days when we used to actually be in each other's presence to hold a conversation?

But, incredibly, Facebook has already succeeded in registering the word "wall." How that passed an originality test, one has to wonder. It also succeeded in trademarking "like." How often do you say "do you like that?" or "I like that?"

Clearly, the world is going mad and the madness is starting at the US Patent and Trademark Office which has granted all manner of patents and trademarks for ordinary business processes on the basis that they can be performed by computer or over the internet.

Perhaps there's one expression needed: it's another four letter word beginning with F.

Come to think of it, has anyone registered "faceoff?"