The following piece is posted by Jeremy for fellow Kat Neil, who is currently on his travels.
|"Daddy, daddy! That naughty|
man said 'iPad' again!"
|Bumble looked and looked, but could|
not find the in-flight wifi anywhere
But in the radio broadcast scenario described above, there is presumably no intentional "placement" of "iPhone" or "iPad" in connection with the commentator's reference to these marks. (Further full disclosure: this Kat owns Apple products, but neither an iPhone nor iPad). Rather, the commentator found it natural and unexceptional to describe the smartphone product by reference to the specific marks in question. As such, a number of questions are raised:
1. Should (or does) news broadcasting have a set of guidelines to cover this situation? After all, if I am a regular advertiser on the programme, and my product is advertised during the slot allotted for advertisements within the context of the overall broadcast, I may well feel slighted, if not more, by this free advertising. "It is tough enough to try and grab the listener's attention to my advertising", the advertiser says to himself, "especially when the advertisement is anyway disconnected from the programme contents." And yet, along comes this commentator, who makes use of these proprietary marks in a demonstrable fashion within the flow of the broadcast discussion itself. Is this fair, this Kat asks?
Is the ultimate generic term
a truly well-known mark?
2. How do we understand the reference to "iPhone" and "iPad"? In effect, the use of these marks seems to take the place of a reference to the relevant generic terms—smart phone and tablet. We are taught that trade marks are an efficient form of commercial communication in identifying the source of the relevant good or service. When I want to refer to the fast-food restaurant across the street from this Kat’s lair, I use the mark "McDonalds" rather than describing "that certain purveyor of fast food and related franchise services developed by Mr Ray Kroc and with its company headquarters in Oak Brook, Illinois). In both cases, the goal is to refer to the source of the goods, but the use of the trade mark is the more efficient way to do so.
3. In our case, however, the purpose of the use of the “iPhone” and “iPad” marks is not to provide a more efficient form of commercial communication about the source of the goods. Rather, they are being used as a form of quasi-generic term in the sense that, instead of referring to a “smart phone” and a “tablet”, the commentator uses the proprietary marks, presumably as exemplars for the two product categories. But is the use of such prominent marks as “iPhone” and ‘iPad” in this context simply evidence that these marks have acquired status as a well-known mark?