I often see people on the Internet who have been hit with an intellectual property takedown related to words they have used in their product listing. While you cannot copyright words or short phrases, you can, however, trademark common words and phrases. When I see a complaint about this issue, 9.9999 times out of 10 the person is confusing trademark and copyright. Copyright requires creativity so it may feel somehow wrong that someone can “own” words they did not create but trademark does not work that way. While it is outside the purview of this site, let’s have a quick trademark crash course.
Trademark laws are all about preventing consumer confusion as to the source of goods. It is not about “owning words” or prohibiting people from speaking freely. Trademarks do not have to be fanciful, creative or made up in order to be registrable. “Common” words are trademarked all the time. For instance, Rolex, Pepsi, Kodak and Xerox are all made-up words while Apple, Delta, American and Amazon are not. Both groups are protectable trademarks. What cannot be registered are words that are generic or simply descriptive of the item being sold.
For example: there are literally hundreds of registered trademarks which use the word “wildflower(s)” in some way. How are there so many? Because, trademarks are limited to discrete categories of goods and there can be a separate owner of the same word in different categories. “Wildflower” is trademarked for table paper, capes, drapes and gowns, wines, cheese, eyeglasses, beer, musical entertainment services, baked goods, hotel services, cosmetic hair removal and bicycles, just to name a few.
While certainly a common word, “wildflower” is not inherently descriptive of bicycles, wine or cheese. As it relates to these categories, wildflower is arbitrary and that makes it a protectible trademark. However, you cannot trademark “wildflower” if you sell flowers because that would be merely descriptive of the product and cannot be registered in that category. Imagine if a florist was able to trademark the term “wildflower;” they would be able to keep competitors from using a word that is the actual name of something they might sell.
No one is prohibited from saying the word “wildflower” or even using it in a listing. If you paint a field of wildflowers, by all means, describe what you painted. But, if you sell baked goods, breads or sandwiches, calling your business “Wildflower Bread” would likely run into a trademark problem as there is already a business who has registered “Wildflower” for baked goods. This creates a likelihood of consumer confusion as to the source of the goods which is what trademark law looks to avoid.
So, if you use a phrase on an item for which it is trademarked, it is apt to be removed even if you deem it to be “common.” You can search for trademarked words, phrases and graphics here.
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