The copyright of the cartoon character Popeye expired earlier this year in Europe.

At the beginning of this year, the copyright of the cartoon character Popeye expired in Europe.  However, the company King Features still owns the trademark, and intends to “protect its brand aggressively.”  Now, imagine that you are a European producer of canned spinach.  With Popeye in the public domain, you wish to include an image of Popeye on the label of your product.  However, King Features challenges your label as an infringement on their trademark by claiming “likelihood of confusion” and “trademark dilution.”  Even though Popeye now is in the public domain, can King Features contest your use of Popeye as an infringement of their trademark?  If trademark can be invoked in this way, then how is trademark not just an extension of copyright?

The US Patent and Trademark Office describes the differences between copyright and trademark as follows: copyright “protect[s] works of authorship, such as writings, music, and works of art that have been tangibly expressed”, and trademark “protect[s] words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.”  So sometimes copyright and trademark can overlap in the types of works they protect—the image of Popeye, for instance, is copyrighted as a “work of art” and trademarked as a “symbol” for King Features.   However, copyright and trademark were established for very different reasons.  The purpose of copyright is to incentivize the production of creative and artistic works, while the purposes of trademark are “to aid the consumer in differentiating among competing products,” and “to protect the producer’s investment in reputation.”  But the most significant distinction between copyright and trademark is the difference in their durations.  Copyright (typically) expires after 70 years plus the life of the author, while trademark can be renewed indefinitely without limit.  The unrestricted duration of trademark makes it more attractive and powerful in protecting works than copyright.

In theory, the distinctions between copyright and trademark seem clear, but in practice, it is difficult to predict how a court will treat one compared to the other.  Intellectual property specialist Mark Owen explains “the Segar drawings are out of copyright, so anyone could put those on T-shirts, posters and cards and create a thriving business.  If you sold a Popeye toy or Popeye spinach can, you could be infringing the trademark.”  The distinction between these two uses—that is, Popeye on a T-shirt rather than on a can of spinach—is not obvious.  For the canned spinach example, it seems unlikely that a claim of “likelihood of confusion” would hold up in court, because King Features is in the business of entertainment as opposed to produce.  A claim of “trademark dilution” seems more believable because the image of Popeye is extensively “famous” that putting him on a can of spinach might result in brand “blurring” or “tarnishing” side effects.  However, I question whether the trademark of Popeye is valid in the first place, because how well do people actually associate King Features with the image of Popeye?  We will not know for sure whether the public domain Popeye or the trademark Popeye will prevail over the other until a court makes a ruling.

The case of Popeye reflects a troubling trend in intellectual property: companies invoking trademark as an unlimited extension of copyright.  The law clearly defines the purposes and extents of copyright and trademark, so it is unsettling to see when these intents are not followed through in practice.  As the first prominent cartoon character to enter the public domain, Popeye will set an important precedent for when his copyright expires in the US in 2024, and for other substantial characters such as Mickey Mouse, who (barring any further successful lobbying by Disney to extend the duration of copyright) is due enter the US public domain in 2023.

The idea that one can ‘lose’ a trademark contains a beautiful nugget of irony. Somehow a trademark can become not too big to fail, but too big to be anything but all-encompassing. Here are some of my favorite genericizations (a terrible word resulting from Plasticolor Molded Products v. Ford Motor Company) from the past, and some future predictions.

At one point, Dry Ice was actually trademarked by the Dry Ice Corporation of America (now that’s creative naming). Trademarked in 1925 the term has completely entered the common lexicon and is obviously generic to any high school science student. Dry Ice is just one of many substances that began as a specific product, along with Heroin, Aspirin and Linoleum. It makes sense on some level that a common material, like graphite or rubber, would be a word of common usage and not a brand, even if it was originally manufactured. For things like Velcro and Vaseline we’ll have to wait and see, but they too look like they will be on the way out pretty soon.

Another surprise trademark was the Thermos, originally a trademarked vacuum flask that went generic in 1963. I think that anyone born in the recent generations understands that a thermos is a concept, not a specific thing, just like the Yo-yo and the Zipper (also long-dead trademarks).

Does this cause problems? I see it more as a victory for language. When a new idea pervades our culture so deep that it becomes part of everyday speech, how can we restrict its use? I am very glad that in our legal system there are ways for trademarks to end and for speech to take over. While there may be unhappy marketing executives in our wake, society wins this battle.

So what will happen next? Will all window cleansers be referred to as Windex? Could iPod turn into a term for any portable music player (like the Walkman)? Perhaps the USPTO has become more discerning in its practice, or maybe companies have become more creative. Maybe it is impossible to know now what will be the next Cellophane or Escalator (1859, and seriously, escalator? wow).

I look forward to taking a Sharpie to some Q-tips and stacking them on Styrofoam before I Photoshop them into a hilarious image on my Netbook. Hope I don’t get sued.

Play a game with me: imagine that scientists at MIT have succeeded in creating beings of artificial intelligence (AI).  These machines can think and feel just as humans do.  They demonstrate the capacity to act with intent, to make ethical decisions, and to learn from experience.  They are composed of silicon circuitry or biologically engineered computational molecular arrays derived from an analysis of the brain’s “software”.  As inventions, they clearly possess the requisite originality or “non-obviousness” for patentability.  But in the regime of AI, a new and yet unanswered question for patentability presses upon us: as free-thinking moral and conscious agents, do they fall outside the conceptual boundaries of “property”?

The above scenario is actually less theoretical than it first appears.  Many prominent scientists, including MIT computer science professor and “futurist” Ray Kurzweil, have written books (see for ex. Kurzweil, “The Age of Spiritual Machines”) predicting that humanity will be forced to confront this very question quite possibly within twenty years.  Indeed, the Media Lab at MIT has already succeeded in producing quite sophisticated forms of AI called “expert systems”.  Some are used to assist physicians in diagnosing diseases and others will be used to create the proposed “smart grid” for saving electrical energy.  These individual applications of artificially intelligent systems and the efficiencies they create are of great practical value, with the ability to save lives and money.  However, they represent only the first iteration of the evolution of devices into creations which may eventually become creative or even “aware”.

If artificially intelligent devices could be said to create ideas which never existed and interact with their environment in a way that we would recognize as “emotional”, should these devices receive the dignity of a more human appellation, and would they then be eligible for protections under the law?  Should they possess rights to “life” and “liberty” – and what would those rights possibly entail?  May we treat “consciousness in a box” as intellectual property, enslave its actions and own the fruits of its labor?

Just as patenting genes is seen as perhaps reducing the building blocks of nature to property, the evolution of artificial intelligence will pose yet more difficult issues.  If an expert system can explore, understand, quantify and improve upon fundamental processes such as manufacturing, chemical engineering, drug development and so on, the intellectual property will not only be the system but its capacity to produce further invention, ultimately reinventing itself.  This begs the question of whether the process of thought itself may be “property” if it can be replicated artificially.  May the process of thought then also be enslaved, or will intelligent devices then be entitled to freedom from ownership, and the fruits of their thoughts also for the common benefit of all?