Dov Seidman Now Suing His Agent Over The Use Of The Word 'How' By Third Party Ad Agency

from the why?--when?--where?--what!?!?!? dept

You may recall a story from a few years back involving self-proclaimed “corporate virtue advisor” Dov Seidman and his quest to sue Chobani for using the phrase “How food is made matters” and the social media hashtag #howmatters. Seidman’s problem with all of this? He had a trademark registered for the word “how.” Yeah, seriously. Seidman claimed that his super-awesome transformational use of “how” as a noun instead of a verb had been trademarked and that this somehow meant that a company that sells yogurt couldn’t use the word in any way similar.

Well, it turns out that Seidman has since sought to drop that case, because he claims that Chobani is no longer using the hashtag and slogan, so all is fine in the world again. Except that he’s now suing his own agent for breach of fiduciary duty, because that Chobani campaign came out of an advertising company called Droga5, in which the agent’s agency, William Morris Endeavor, holds partial ownership.

“WME actively encouraged Droga5 to use WME’s own client’s intellectual property to land this lucrative advertising contract with Chobani and then to create a campaign that would make use of, and dilute the value of, its client’s intellectual property — all without the knowledge or permission of its client,” states the complaint filed Monday. “Seidman’s use of ‘how’ as a noun has given it a distinct meaning, expressing the values-based ethos of individual and organizational behavior at the center of his how philosophy,” states the complaint. “Phrases such as ‘how is the answer,’ ‘how matters,’ and ‘get your hows right’ are uniquely identified with Seidman.”

The suit claims Seidman’s agent, WME partner Jay Mandel, not only knew of his philosophy but actually helped him develop it over a decade of working together. Seidman says Mandel also failed to disclose WME’s involvement in the Chobani campaign when Seidman approached him after it launched.

Okay, let’s summarize so you can get a clear understanding of what’s occurring here. Seidman has a federal trademark registration on the word “how” as a noun for his business, which is corporate virtue advising. Consulting, in other words. Chobani uses the word “how” in a way that Seidman declares to be infringing, then stops, placating him. Seidman’s agent helped Seidman come up with this transformational use of the word “how” and works for a company that holds a 49 percent stake in the advertising agency that produced the Chobani ad he was previously upset about. The claim is that the agent used Seidman’s intellectual property by pushing the ad agency to use it, getting the Chobani campaign contract and enriching the agency.

Except we’re still talking about the word “how” here. And Seidman and Chobani, who actually used the word in the marketplace, aren’t in remotely the same industries. If the claim about breach of fiduciary responsibility centers on Seidman’s trademark property, and it does, then there’s nothing here, because there was no infringement to be had. As for the fiduciary responsibility bit, it’s obvious that Chobani wanted an ad campaign, not someone to advise them on corporate virtue, so I’m not clear what Seidman is even talking about here.

And yet Seidman must share the blame for this stupid, idiotic mess with the USPTO, who granted a federal trademark on the word “how”. Were it to have never done so, absolutely none of this nonsense would be occurring. Trademarking the word “how” sounds like one of the sarcastic exaggerations we see in the comments section whenever we write about a slightly less abusive trademark case. But, with the culture of permission fermenting, parody has given way to real life examples of just how ridiculous this has all become.

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Companies: chobani, droga5, william morris endeavor

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Comments on “Dov Seidman Now Suing His Agent Over The Use Of The Word 'How' By Third Party Ad Agency”

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29 Comments
Dingledore the Flabberghaster says:

Reminds me of the classic Goon Show

The Great Regent’s Park Swim
First broadcast 21st October 1957
starring Peter Sellers, Harry Secombe, and Spike Milligan

Eidelburger: Right, grab Seagoon, and into the tank with him.

Seagoon: Aaagh!

FX: (splash, paddling noises)

Yakamoto: Oh, boy! Oh, look! Neddie Seagoon are not a-sinking.

Eidelburger: So, that’s what the green liquid was. Yakamoto, we have invented swimming.

Seagoon: Hup, swimming? Snatching up the bottle of green liquid. I set off to achieve my lifelong ambition, namely, running along with a bottle of green liquid.

Greenslade: Ah, Mister Seagoon, If I were you, I’d.. I’d patent that idea.

Seagoon: You’re right. So when the idea catches on, I can charge people royalties every time they run along with a bottle of green liquid.

Grytpype-Thynne: Moriarty, we’ve got to stop Seagoon swimming.

Moriarty: …Explain.

Grytpype-Thynne: Well, I’ve just invented the word “Help” for people who are drowning. If Seagoon markets swimming, my word “Help” is worthless.

Spriggs: Silence, Jim! You can’t swim. You can’t swim in that canal today!

Seagoon: What, what?

Spriggs: Yes, you cannot swim today because I’ve invented this sign saying “No swimming on Mondays”.

Seagoon: Curses, foiled by Monday!

Bluebottle: Monday has gone.

Seagoon: Why? How?

Bluebottle: I’ve just invented Tuesday.

Grytpype-Thynne: … and I warn you, nobody shout “Help”. That is a word I’ve just invented and will cost anybody five hundred pounds to use. Now, give me that green liquid. Right, Neddie, into the canal.

Seagoon: But I can’t swim without that green liquid. Aarrggh

FX: (splash)

Seagoon: You swine, you pushed me in! Help!

Grytpype-Thynne: Out you come, Ned. To using the word “Help”, five hundred pounds

FX: (cash register)

Grytpype-Thynne: Thank you.

Seagoon: Wait, wait, but I …

FX: (splash)

Seagoon: Help!

Grytpype-Thynne: Out you come, Neddie. To using the word “Help”, another five hundred Pounds.

FX: (cash register)

Grytpype-Thynne: I thank you.

Seagoon: But look here, I …

FX: (splash) floundering

Seagoon: You swine, you pushed me in. Help!

Grytpype-Thynne: Out you come, Neddie. To using the word “Help”, another five hundred pounds

FX: (cash register)

Grytpype: Thank you.

Seagoon: Wait. (splash) Help!

FX: (cash register)

Kronomex says:

Re: Reminds me of the classic Goon Show

An hour or so before I go to bed every night I listen to a an episode of The Goon Show and The Great Regent’s Park Swim was last nights random pick. The above sequence (which always cracks me up) sums up the stupidity of Seidman and his “How”. Life imitates art once again.

Bob (profile) says:

“Seidman claimed that his super-awesome transformational use of “how” as a noun instead of a verb”

Friend, “How” is not used as either a noun or verb, not even by Seidman. The sentence “How food is made matters” is a noun clause (“How food is made”) plus a verb (“matters”). Within the noun clause, “How” is used as an adverb….

Just sayin’

trollificus (profile) says:

Re: Re:

Sorry, I’ve just got a patent on “The process of publically diagramming sentences”, which you are in violation of-without paying fees per the accompanying 344 page manual/payment schedule. I’ve made an exception for educational use, out of the goodness of my heart and to declare on my taxes as a ‘charitable contribution’.

This latter based on the fact that any theoretical money not captured, that might have been captured, is “lost”, “stolen” or “contributed willingly”.

Anonymous Coward says:

Except we’re still talking about the word “how” here. And Seidman and Chobani, who actually used the word in the marketplace, aren’t in remotely the same industries.

If you did your homework (and we both know you don’t do homework), you’d know that Seidman claimed Chobani was using his service mark (not a trademark–learn the difference) to promote its ethical corporate practices (not just to sell yogurt). Considering the fact that Seidman has service marks (e.g., registration number 4,210,276) for “how” in business ethics, it’s not nearly as far fetched as you make it out to be.

And yet Seidman must share the blame for this stupid, idiotic mess with the USPTO, who granted a federal trademark on the word “how”. Were it to have never done so, absolutely none of this nonsense would be occurring. Trademarking the word “how” sounds like one of the sarcastic exaggerations we see in the comments section whenever we write about a slightly less abusive trademark case. But, with the culture of permission fermenting, parody has given way to real life examples of just how ridiculous this has all become.

You haven’t explained why it shouldn’t have been registered as a service mark. Can you? (Rhetorical question. We both know you’re completely clueless about trademark law.)

Seriously, Timmy, learn the basics. Did you notice how the THR article you cribbed from didn’t draw legal conclusions? Real reporters–especially those with zero legal background like you–don’t do that. You just look like a fool. And you make Mike look an idiot for hiring you (although, I’m guessing your not an employee).

trollificus (profile) says:

Re: Re:

People could have used the word “how” regarding the provision of any service. Trademark or service mark, it still depends on confusion (deliberate or accidental) to make the case for violation.

He doesn’t own the word “how”, and, as was noted above, it wasn’t even used in his magically ‘transformative’, innovative sense as a noun. It’s an adverb. Too confusing? Maybe THAT’S why it shouldn’t have been granted in the first place, or at least why the scope of protection offered him should be very, very narrow. And it is. Suing his own representation for failing to squeeze every penny out of every situation? Par for the course. Go for it.

If it’s people like this giving corporations advice on “virtue”…well, that explains a lot. All your hair-splitting could have been avoided had he sought the services of an advisor on “Not appearing to be a total wanker”. Hard to put that genie back in the bottle using the fine points of trademark law…

trollificus (profile) says:

From the “NYT:

“Even if Mr. Seidman can prove he has been the victim of theft, that may not be enough. Trademarks are meant not to prevent companies from stealing others’ ideas, but to protect consumers from mixing up brands. Mr. Seidman will need to demonstrate that people might be inclined to confuse a yogurt manufacturer with a company that provides consulting services, or mistakenly believe that the two companies were otherwise connected in some way.”

But go for it Mr. Seidman. Show us the virtue of “money-grubbing”.

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