We've written many times in the past about how, thanks to the ridiculous sense of "ownership society" that is often presented to the world around copyright, patents and trademarks, it's unfortunately common to see massive overclaiming of certain rights. That's especially true of trademarks, which really shouldn't be lumped in with patents and copyrights, since they're very very different. Trademarks, as we've noted before, are really
about avoiding consumer confusion, so they don't buy one product trusting that it's another product. It is not
about "ownership" in any sense. And yet so many companies (and individuals) think that if they get a trademark on a word or phrase, they can basically stop anyone else from ever using it.
The latest example of trademark overreach comes from PNC Bank, who threatened a reporter at the San Francisco Chronicle
for having the gall to use the phrase "virtual wallet" in an article. PNC sent a legal nastygram, telling the SF Chronicle that it must "refrain from misuse of our client's VIRTUAL WALLET trademark." Except, of course, that's hogwash. Nothing in trademark law could possibly make that true, and the Chronicle's James Temple responded appropriately:
To which I say: virtual wallet, virtual wallet, virtual wallet, virtual wallet.
Furthermore, he notes that the trademark itself is almost certainly invalid, as the phrase was in widespread common usage for many years before 2008 when the bank sought the trademark (and, ridiculously, the USPTO granted it).
In late 1994, Newsweek published an article titled "The Age of Cybercash" that informed readers: "Your virtual wallet may soon be here."
By the end of 2007, the term "virtual wallet" had appeared more than 700 times in the English press, including in American Banker, the Economist, the New York Times and Consumer Reports.
Nevertheless, the following year, PNC Financial Services Group launched a "Virtual Wallet" product. It sought trademark protection, asking to own the commercial rights to two consecutive words that had been pushed together by the press and industry more than a decade earlier.
Temple goes on to call out others who have sought to abuse trademark law to "homestead" the English language -- including our favorite trademark troll ever, Leo Stoller
, who "trademarked" all kinds of words including "stealth," "all goods and services," "chutzpah," and (oh yeah) "Google" which he claimed to have been using
As Temple notes, PNC is trying to avoid having the phrase "virtual wallet" be declared generic such that their registered trademark can be eliminated, but if they didn't want that to happen, they probably shouldn't have gone with such an already generic and descriptive phrase.