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Stormy Weather

PR companies are delighted when a client's brand is favorably mentioned in a New York Times headline -- except when the headline refers to someone else's product. 

In a letter to the Sunday Styles editor, GustBuster umbrellas' PR rep noted that the September 9 "Pulse" column (no longer available online or even on Lexis) had reported on a rival umbrella by Davek -- under the headline "Gust Busters."  The letter went on to say -- twice -- that the real GustBuster company was upset at the incorrect use of its "copyrighted" name. 

GustBuster umbrella

Allow Counterfeit Chic to correct the correction.

The brand name GustBuster is not copyrighted.  I know this because (a) copyright law does not protect short phrases, and (b) I checked, just to make sure someone in the U.S. Copyright Office hadn't been out in the sun too long. 

What the PR company presumably meant to say is that its client's name is trademarked, which it is.  Twice -- as both a word and a logo including an umbrella and raindrops. 

Of course, confusing copyright with trademark, or patent for that matter, is a quite common error.  In this case, however, there's another moral to the story:  Companies should be cautious when choosing trademarks that indicate the function of their products -- in this case an umbrella that, like its competitor, is designed to resist being turned inside-out by strong gusts of wind. 

As intellectual property lawyers are well aware, potential trademarks can be classified along a sliding scale of distinctiveness as arbitrary or fanciful (terms with no relationship to the branded product), suggestive, descriptive, or generic.  If the name is arbitrary or fanciful -- like "Davek" for umbrellas -- trademark lawyers go to bed happy.  As long as nobody else has registered "Davek" or anything similar, particularly for umbrellas, the trademark is easily registrable and protectable.  If it's generic -- like "Umbrella" for umbrellas -- the mark can't be registered at all.  And if the name is somewhere in between, like "GustBuster," the mark might be registrable -- but it might also leave you writing letters to the New York Times when it is used in conjunction with someone else's goods.

Now, what would you call an umbrella that was not only windproof, but also couldn't be left behind in a taxi?