Overreaching copyright claims, overreaching patents, overreaching trademarks, overreaching litigation, and overzealous lawyers who ought to be ashamed. In equestrian circles, they say a horse overreaches when its hind legs extend so far forward they kick the forelegs. It’s a fitting image. In today’s wild world of intellectual property we find pervasive evidence of overreaching legal teams kicking the firms they supposedly represent. Do the Smucker folks really think they can win anything worthwhile by achieving crustless PB&J supremacy over a small rival? Could it possibly be worth the bad press and ever-rising legal fees as the case wends through the courts?In homage to the Earl of Sandwich, who I’m sure is turning in his grave, I’ve singled out the Smucker case. But everybody I talk to seems to have their favorite examples-and I welcome further nominations. To start things rolling, though, here are a few others worth an honorable mention:
- The legal acumen of British Telecom in dusting off a dubious 1989 patent (one of those “Rembrandts in the attic”) and starting to sue others claiming it has exclusive rights to the hyperlink that makes the Web possible. (And you thought Al Gore invented the Internet!)
- Ralph Lauren’s victory in appeals court last year, when his lawyers forced a magazine begun in 1975 as the official publication of the U.S. Polo Association to change its name. What gall: they had called it Polo. Didn’t they know that is a line of clothing and accessories?
- Mattel’s efforts to uphold the good and profitable Barbie name. In only the most recent in a long list of similar actions, Mattel dragged Utah artist Tom Forsythe to court for trying to exhibit a photo series called “Food Chain Barbie” that depicted the doll in various culinary poses, including wrapped in a tortilla, smothered with enchilada sauce.
This last case is an especially rich example of IP overreach. I mean, I don’t know if it’s art, but haven’t Mattel’s lawyers heard of the First Amendment? I’m just glad Forsythe didn’t seal Barbie in a crustless PB&J, or he’d probably have J. M. Smucker’s lawyers after him too.