As widely reported, Apple is continuing its quest to police all uses of the term "pod," whether or not any consumer could possibly imagine that Apple was sponsoring the use in question. Apple's effort to forbid "unauthorized" use of such terms as "podcast ready" is just one more example of a company losing sight of the fundamental purpose of trademarks: to improve consumer access to accurate information about goods and services. Trademarks are just shorthand terms that designate the origin or sponsorship of a product. Given the ubiquity of the term "podcast," Apple's contention that consumers will imagine that the company endorses or sponsors every use of that term is hubris at best, and a dangerous pretext for an effort to control language at worst.
Coincidentally, a bill that could assist this kind of overreaching is before Congress today. The Trademark Dilution Revision Act (TDRA, HR 683) is a big company's dream. If it passes, the lawyers policing a trademark could sue businesses and individuals for using words, images, or even colors that look vaguely like a famous brand - without even having to prove that the company is being harmed. The bill would also narrow one of the best protections speakers, consumers, and competitors have against improper efforts to control language--the defenses of fair use, news reporting and noncommercial use. Under the existing law, the exceptions apply to all trademark claims. But the bill's proposed language would open the door to new claims that classic fair uses are now infringing.
