Who Owns "Freedom of Speech"?

Freedom of expression, it turns out, may not be for everyone.

Kembrew McLeod, assistant professor of communications studies at the University of Iowa, believes that "freedom of expression" — or at least the phrase — belongs to him, because he registered it as a trademark in 1998. And now that AT&T is using the phrase in some print ads, he wants the company to stop.

Yesterday, Mr. McLeod sent AT&T a "cease and desist" letter, asserting that consumers might infer a link between the company and his anti-corporate publication, "Freedom of Expression." The bigger idea behind his legal action, he said, is to object to corporate power over words, speech and even ideas.

"I do want to register my genuine protest that a big company that really doesn't represent freedom of expression is trying to appropriate this phrase," he said.

AT&T has not received the letter and will not comment before it does, said Jeff Roberts, a company spokesman.

While it may seem unlikely that Mr. McLeod will be able to push around a corporate titan like AT&T, stranger things have happened on the increasingly bizarre battleground of intellectual property, trademark and copyright law.

The notion of intellectual property became tabloid fodder in 1993 when NBC lawyers tried to prevent David Letterman from taking skits like Stupid Human Tricks from "Late Night" to his new CBS show. Then the game show hostess Vanna White successfully sued Samsung Electronics for making a commercial with a robot in her likeness without her consent.

Dust-ups proliferated, and by last October, the premise was pervasive enough to drive a plotline on an episode of "Curb Your Enthusiasm" on HBO in which the comedian Richard Lewis tried desperately to prove he coined the all-purpose pejorative, "blank from hell" (as in "nanny from hell").

"Trademark law really wasn't that big a problem several years ago," said Lee Tien, senior staff lawyer at the Electronic Frontier Foundation, a technology-oriented civil liberties group in San Francisco.

Traditionally, the litmus test was customer confusion: if a potential trademark infringement confused customers, it was probably illegal, he said. But the courts increasingly have ruled that diluting a brand — by using a similar name even in an entirely different business — is against the law, Mr. Tien said. And the spreading reach of the Internet has brought every McDonald's dry cleaners and McDonald's car wash into potential conflict with the McDonald's Corporation.

One result is a lawsuit from Victoria's Secret in Columbus, Ohio, part of Limited Brands, accusing a store in Elizabethtown, Ky., originally named Victor's Secret, of dilution. Although the store was renamed twice — Victor's Little Secret and then Cathy's Little Secret — the case still landed before the United States Supreme Court in November.

"No one would think for a moment that Victoria's Secret has anything to do with Victor's Little Secret," said Jonathan Band, a partner at the Washington office of Morrison & Foerster. "But he's clearly trying to trade on the name." The court now has to decide how much damage, if any, Victoria's Secret has been done, he said. A ruling is expected this summer.

While such contests often pit large trademark holders against mom-and-pop companies, it is not always that way. Behemoths are subject to scrutiny as well, including Microsoft, which is suddenly defending its trademark on the word "Windows" in court.

Microsoft began the legal dispute when it filed suit against Lindows .com Inc., in December 2001, asserting that Lindows, a maker of Linux-based software, was freeloading on the Windows name. Microsoft said it had invested $1.2 billion in marketing Windows, which it had successfully registered as a trademark. Lindows .com later sued to strip Microsoft of its trademark, arguing in part that "windows" was too generic to trademark. The case is pending.

Daniel R. Harris, partner at the law firm of Clifford Chance, which is representing Lindows.com, said Microsoft wanted to reserve a common word exclusively for its own marketing. "They're trying to use their monopoly power to monopolize a word out of the English language," he said.

Not surprisingly, Microsoft takes a different position. "Our viewpoint is a fairly simple one," said Jon Murchinson, a company spokesman, "that Lindows not free-ride on the investments that we've made in building Windows into one of the most recognizable brands in the world in the last 20 years."

The stakes seem lower for AT&T. The ads using "freedom of expression" ran only in college-oriented newspapers during the third quarter of last year, said Mr. Roberts, the AT&T spokesman.

For Mr. McLeod, however, a confrontation with AT&T could generate welcome publicity, and not only for his belief that private ownership of language can impede the free flow of information. His trademark certificate will be part of an exhibit of art on the fringes of intellectual property, entitled "Illegal Art," opening in Chicago on Saturday.

From The New York Times. Click these for info on Illegal Art, Carrie McLaren's excellent Adbustersesque zine STAY FREE! or Kembrew McLeod.