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Trademark

by Mike Masnick

Mon, Feb 7th 2011 9:27am




Filed Under:
king's speech, no animals were harmed, trademark

Companies:
american humane association, weinstein company


Humane Association Trademarked 'No Animals Were Harmed'; Threatens King's Speech With Infringement Claim

from the descriptive? dept

Another day, another story of trademark law gone wrong. You've all seen it at the end of movies, where there's a little line somewhere that says "No animals were harmed in the making of this movie," or something along those lines. What you might not know (I didn't) is that the American Humane Association has trademarked the term "No animals were harmed." The reasoning, of course, is that it wants to monitor scripts and movie productions to make sure, in fact, that no animals were harmed. Apparently, the Weinstein Company, producers of the highly acclaimed movie The King's Speech did not choose to work with AHA, but still included the line at the end of the movie, leading the AHA to threaten legal action unless the line is removed from the movie.

While the article at THResq suggests that the trademark is valid, I wonder if that's really true. "No animals were harmed" certainly sounds descriptive, and that's a no-no for a trademark. On top of that, it seems you could easily argue that the phrase has become generic, for the simple fact that I'd bet almost no one outside of the movie business has any idea that AHA has the trademark on the phrase. Even if the term was a valid trademark for the AHA, I still don't see how a lawsuit would get very far. Would AHA claim a likelihood of confusion? That would be tough to show. Dilution? Seems like a stretch. On top of that, assuming it's truthful that no animals were harmed in the making of The King's Speech, it would appear that the Weinsteins had a really strong defense.

While I can certainly appreciate what the AHA is trying to do, I'm not sure it's legally sound. If it wanted a strong trademark, why not design a basic "No animals were harmed" logo that would identify with the AHA and which movies could put at the end of their films so that people knew that the AHA monitored the film to make sure no animals were, in fact, harmed. But focusing just on the phrase seems like a really weak idea.

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    vivaelamor (profile), Feb 7th, 2011 @ 9:14am

    Monkey Island

    Next they'll be investigating Mr Threepwood's treatment of dogs.

     

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    RikuoAmero (profile), Feb 7th, 2011 @ 9:40am

    Just one thing you forgot to mention Mike, unless you did think of it and deemed it unnecessary:
    Don't trademarks have to do with commerce? Is the AHA a commercial organization? If it isn't, what is this supposed trademark supposed to protect? Saying its a trademark "to monitor scripts and ensure no animals are harmed" has nothing to do with trademark or trademark law.

     

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      Michael, Feb 7th, 2011 @ 9:46am

      Re:

      "what is this supposed trademark supposed to protect?"

      Trademarks are supposed to protect CONSUMERS from confusion. In theory, this trademark exists to protect consumers from believing the AHA verified something that it has not. In practice, nobody knows that the AHA normally verifies the claim, so it is a pretty useless trademark.

       

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      Mike Masnick (profile), Feb 7th, 2011 @ 10:09am

      Re:

      Just one thing you forgot to mention Mike, unless you did think of it and deemed it unnecessary:
      Don't trademarks have to do with commerce? Is the AHA a commercial organization? If it isn't, what is this supposed trademark supposed to protect? Saying its a trademark "to monitor scripts and ensure no animals are harmed" has nothing to do with trademark or trademark law.

      Yeah, I had thought about including that, and it's a good point, but I figured that was going even deeper into the weeds. But it is still a good point as well.

       

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        Comboman, Feb 7th, 2011 @ 1:15pm

        Re: Re:

        "Use in commerce" is pretty broadly interpreted. Non-profits and even government organization hold trademarks on names and logos.

         

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      Anonymous Coward, Feb 7th, 2011 @ 2:33pm

      Re:

      In the U.S., you can get registrations for "certification marks" and other types of marks that show a particular thing is approved by a group or a union or something. I would assume that's the kind of registration they have.

       

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    Anonymous Coward, Feb 7th, 2011 @ 9:43am

    Or they can just say "No animals were injured" ... or w/e other synonym they can find...

     

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    BBT, Feb 7th, 2011 @ 9:43am

    I always wondered with those messages how they classify "animal". Were no mosquitoes swatted? No ants stepped on?

    Perhaps they should reword it as "no cute animals were harmed".

     

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      RikuoAmero (profile), Feb 7th, 2011 @ 9:48am

      Re:

      Dennis Leary in "No Cure for Cancer" (maybe not the exact wording but its close enough)

      Everyone wants to save the cute ones, don't they. So we get the animals to line up one by one.
      -What are you?
      -I'm an otter!
      -And what do you do?
      -I clap my flippers together cutely and bounce a beach ball
      -You're free to go. Next!
      -I'm a cow.
      -Don't want to hear it! Get on the truck!
      -But I...
      -I don't care! You're a baseball glove! Next!

       

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      Michial, Feb 7th, 2011 @ 12:11pm

      Re:

      Actually you should ask, did they put rat traps out, or rat poison or something like that...

      It's a lot easier to identify a mouse or rat as an animal than a random insect.

       

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    Michael, Feb 7th, 2011 @ 9:43am

    Animals Were Harmed!

    Seem to me like enforcing this trademark encourages the harming of animals.

    If you don't harm animals and then accidentally forget and mention that you didn't harm animals, you could get sued. On the other hand, you can tell people that you harmed animals and be completely in the clear.

    I think I need to put on my alligator boots to wade through this one.

     

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    RobShaver, Feb 7th, 2011 @ 9:43am

    Yoda-speak

    Yoda would say, "Harmed not were animals." Would that do the job or would Lucas Film sue for that?

     

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    Brady, Feb 7th, 2011 @ 9:46am

    Is it perhaps a certification mark?

    And if they are in fact providing a service of certifying that no animals are harmed during the making of a movie that is distributed across state lines (and therefore the certifying mark is on a product in interstate commerce), they've cleared the interstate commerce hurdle.

    I don't know any of this for sure, but while we're speculating...

     

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      RikuoAmero (profile), Feb 7th, 2011 @ 9:52am

      Re:

      I didn't even know that this kind of checking was done by an external organisation. So they fail the trademark test, in that I, the customer who's bought or watched the movie, didn't even know it was a phrase used in commerce.

       

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      Chris Rhodes (profile), Feb 7th, 2011 @ 11:17am

      Re:

      they've cleared the interstate commerce hurdle.

      That's not saying much. Simply breathing clears that hurdle, these days.

       

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    Stephen, Feb 7th, 2011 @ 9:56am

    from the humane society website

    http://www.americanhumane.org/protecting-animals/programs/no-animals-were-harmed/

    btw, what animals were in the movie?

     

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    Anonymous Coward, Feb 7th, 2011 @ 9:59am

    I had no idea that the AHA had a trademark on this phrase. I also didn't know that when they put none were harmed, the AHA audited or monitored the project.

    Kind of a weak attempt by the AHA. They do need some kind of cute seal or "logo" that actually could be enforced. Of course, they would charge for the right to use it.

     

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      Jeff Rife, Feb 8th, 2011 @ 10:44am

      Re:

      They do need some kind of cute seal

      How about a baby seal, and beside it a club covered with a red slashed circle?

      Baby seals are cute, right?

       

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    zegota (profile), Feb 7th, 2011 @ 10:03am

    As lame as this is, I disagree with you that there's no chance of confusion. It may very well be the case that the phrase has become generic, and that may invalidate their trademark, but I can understand the argument that using the phrase "no animals were harmed" is understood to mean "the AHA has ensured no animals were harmed..."

     

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      RikuoAmero (profile), Feb 7th, 2011 @ 10:09am

      Re:

      In basic English, saying "No animals were harmed" does NOT EQUAL "The AHA has ensured..." The first phrase states a simple fact of no harm, while the second states a group has actually checked on the fact of no harm. How can anyone "understand it to mean" when no-one has even heard of the AHA?

       

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      Ima Fish (profile), Feb 7th, 2011 @ 10:11am

      Re:

      "I can understand the argument that using the phrase "no animals were harmed" is understood to mean "the AHA has ensured no animals were harmed...""

      I think you've also accidentally explained why the phrase is merely descriptive and not worthy of trademark protection.

       

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        zegota (profile), Feb 7th, 2011 @ 11:11am

        Re: Re:

        It's very possible -- but AHA's defense will likely be what I outlined, and I wouldn't be entirely surprised if they won (though if I had to bet, I'd say they'd probably lose).

         

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      Not an electronic Rodent, Feb 8th, 2011 @ 3:00am

      Re:

      "no animals were harmed" is understood to mean "the AHA has ensured no animals were harmed..."
      Does it? I'd always assumed this in credits to mean "We in Hollywood want to convey the impression we're really nice nad care about fluffy bunnies lots like when we put in the extra scene in Cliffhanger so the cute bunny lived" I had so idea at all there was any organisation behind it and still less did I care.

       

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    Anonymous Coward, Feb 7th, 2011 @ 10:09am

    I wonder if Taco Bell will apply to the AHA for the right to say that no animals were harmed in the creation of their tacos?

     

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    qwerty, Feb 7th, 2011 @ 10:14am

    i have often wondered about that part of the film credits - as you NEVER see a film saying "a dog was bruised during filming, but made a full recovery" or anyhting like that.

    does this mean that there has never been an incident where an animal has been harmed on a film set ? that seems unlikely, given that actors occasionally get injured (even killed). would love to know whether there is a film with credits admitting to something (not to wish harm on any animal, just to know the system "works") maybe the aha themselves could enlighten us

     

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    crade (profile), Feb 7th, 2011 @ 10:20am

    "While I can certainly appreciate what the AHA is trying to do, I'm not sure it's legally sound"

    It sounds like what they are trying to do is offer a sort of certification and they are going about it completely wrong. What they should be doing is trying to establish themselves as a recognized standard and make companies / movies / whatever want to show that they are associated with their certification, not trying to play tricks to try to make it impossible to claim you don't harm animals without being associated with their certification.

     

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    RobShaver, Feb 7th, 2011 @ 10:31am

    Yoda-speak

    Yoda would say, "Harmed not were animals." Would that do the job or would Lucas Film sue for that?

     

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    TriZz (profile), Feb 7th, 2011 @ 10:39am

    Fact

    I know you can't copyright facts...is the same true for trademarks? I mean, if no animals were harmed during the making of a film, wouldn't that simply be a statement of fact?

     

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      RikuoAmero (profile), Feb 7th, 2011 @ 10:42am

      Re: Fact

      Copyright and trademarks are two seperate concepts in law.

      For example, copyright says I can't copy a Harry Potter book without permission from its author or copyright holder(s).
      Trademark says I can't write a completely original story, then slap on a Harry Potter stylized font on the cover (you know the one, the font Harry Potter is written in in the title of the movies), because that would confuse potential consumers into thinking its an actual Harry Potter book. Trademark has nothing to do with me actually copying the story.

       

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      RikuoAmero (profile), Feb 7th, 2011 @ 10:47am

      Re: Fact

      And you're right about it being a simple statement of fact. I never knew movie studios used an outside organization to vet the safety of animals, simply because no mention was ever made of this group.
      Plus, I hope they have deep pockets, because if they plan on suing the producers of one movie, surely they plan on suing the producers of every movie that had the disclaimer. I'm pretty sure Hollywood has better lawyers than some mere vetting group.

       

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    Anonymous Coward, Feb 7th, 2011 @ 10:46am

    Expand the disclaimer to clarify that the statment is not AHA-certified. Problem solved.

     

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      Jason, Feb 7th, 2011 @ 11:47am

      Re:

      You want me to cast unnecessary aspersion on what I think are legitimate claims? Based upon your bogus trademark claim? No thanks.

       

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    Planespotter (profile), Feb 7th, 2011 @ 10:50am

    B'stards!

    I'm going to start a facebook group to boycott "The Rite" with Anthony Hopkins.. the b'stards deliberately shot the movie outside of the US to prevent The Humane Association from checking whether frogs were harmed swimming in ponds, cats abused walking in and out of houses, birds flying and best not mention the red eyed donkey! Grrrr!

     

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    Hugh Mann (profile), Feb 7th, 2011 @ 10:57am

    Maybe a certification mark

    Certainly, the AHA is not selling goods with their mark on them.

    I guess it could be they're claiming it's a certification mark. Like the UL (Underwriters Laboratory) mark. Basically certifying that the product so marked has met certain criteria.

    I agree that it seems generic/descriptive. Might be different if the mark were "AHA Approved" or "AHA Harmless" or "Critter Friendly" or something like that.

    HM

     

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    Anonymous but identifiable, Feb 7th, 2011 @ 11:19am

    Filmed outside the USA anyway

    That nice Mr Wikipedia says: "Principal photography took place in London, and other locations in the United Kingdom, in December 2009 and early January 2010"

    So why would the AHA even have "juristiction" (The Kings speech - surely only the RSPCA would be good enough)

     

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    The Baker, Feb 7th, 2011 @ 11:25am

    Protecting Your Ass*

    Someone at the AHA with a bit of a sense of humor has made a pamphlet:
    Protecting Your Ass*
    *and your horse, your dog and every other animal on your set

    http://www.protectingyourass.org/assets/docs/pya-brochure.pdf
    It does show a funky little dog/horse/elephant/film logo along with "No Animals Were Harmed (R)"
    A lookup at: http://tess2.uspto.gov/bin/showfield?f=doc&state=4007:uiajcu.2.1
    Shows that they are trying to use it as a certification:
    "The certification mark,as used by authorized persons, certifies that the treatment of animals during motion picture, film, television, and live show production conforms to the standards, regulations, guidelines, or specifications developed and published by the certifier. Applicant is not engaged in the production or marketing of the services with which the mark is used."

    Seems like a stretch.

    Perhaps their Asterisk should have read
    *And how to keep us from suing it.
    It does show a funky little dog/horse/elephant/film logo and

     

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    Chronno S. Trigger (profile), Feb 7th, 2011 @ 11:38am

    Harmed animals were not

    Except the chicken that the teamsters eat for lunch, and the ham at the cast thanksgiving party, and the tapes that they recorded the movie on, that has some animal products in it...

     

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    OC, Feb 7th, 2011 @ 11:45am

    How about....

    No animals were harmed in the making of this movie, but quite a few put to death so we could have lunch.

     

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    DannyB (profile), Feb 7th, 2011 @ 12:19pm

    They should design a mark with a logo

    Sort of like the trademarked "G", "PG", etc, logos.

    Design a "NH" no animals were harmed logo. Trademark that.

    ---
    Very few animals were harmed in the making of this post.

     

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    Lawrence D'Oliveiro, Feb 7th, 2011 @ 12:51pm

    The Irony...

    ...of, say, putting out a movie where a stuntwoman broke her neck and ended up in a wheelchair for the rest of her life, with that nice little “no animals were harmed” stuck on the end—the welfare of the animals would be the last thing on my mind.

     

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    mjb5406 (profile), Feb 7th, 2011 @ 1:02pm

    All in the phrasing?

    Wouldn't it be a simple task to use different wording that had the same meaning, like "There was no harm to animals during the creation of this film" or "We harmed no animals when we made this film"? I doubt the AHA wants to trademark every variation.

    Or maybe a logo with "Kill Animals" in bold type wih the red "No" symbol (red circle and diagonal line) through it.

     

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      crade (profile), Feb 7th, 2011 @ 2:35pm

      Re: All in the phrasing?

      I'm sorry, that post is trademarked. But don't worry, you can still reword it in another way.

      (also, I'm suing you for using it)

       

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    LA, Feb 8th, 2011 @ 9:35am

    American Humane Association is sanctioned by the movie and television industry to be the only organization that can certify the humane treatment of animals used in production. This is a relationship that has some considerable legacy to it. The group does have a logo for "No Animals Were Harmed" and when it is used to note that a production has earned certification based on the industry-approved standards it includes the organization's name.

    How do any of these things play in this?

     

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    anonymousfilmmaker, Dec 2nd, 2011 @ 9:43pm

    filmmakers are now discouraged from using the AHA to monitor that animals arent harmed, because it costs $88 an HOUR to have an on site rep. You have to do that in order to be allowed to say "No animals were harmed" at the end of your credits. So altho we certainly arent harming any animals, more and more films choose not to work with the AHA to SAVE MONEY.


    there is something VERY wrong with that.

     

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    anonymousfilmmaker, Dec 2nd, 2011 @ 9:46pm

    filmmakers are now discouraged from using the AHA to monitor that animals arent harmed, because it costs $88 an HOUR to have an on site rep. You have to do that in order to be allowed to say "No animals were harmed" at the end of your credits. So altho we certainly arent harming any animals, more and more films choose not to work with the AHA to SAVE MONEY.


    there is something VERY wrong with that.

     

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      veggiedude, Dec 27th, 2011 @ 10:43pm

      Re: $88/hr is cheap

      No Hollywood movie would consider $88/hr as expensive - have you ever been on a set to see the amounts of catering they have done for lunch?

       

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    Megan Summers, Dec 2nd, 2012 @ 10:22pm

    Be clear about it

    Then rephrase it. Problem solved.

    I agree with the author. Why not make a logo instead of just a simple phrase? I bet if The King's Speeches was not a hit, AHA wouldn't be making any of this fuss.

     

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