Intellectual Property issues with phrases that lack the requisite distinctiveness to deserve any type of trademark is what happened in this case. “Own Your Power” a phrase used by the Winfrey network, was also used by plaintiff, her company is called Own Your Power Communications. Simone Kelly-Brown trademarked the phrase seven years prior. But, she failed to show how the use of the phrase by Winfrey’s company would cause a likelihood of confusion by consumers. Brown’s company did not prove that they would create a media presence of millions that would cause consumers to confuse her company with that of Oprah’s. I am inclined to agree. I would think this would help her company, people thinking her company is affiliated with Winfrey’s thereby increasing her clientele, no?
Let’s define Fair Use, for future reference. FU, how appropriate, tells the copyright owner FU in no uncertain terms and that there is a limitation or exception to their owning their copyright exclusively. FU is a defense that would be used by the alleged infringers, here Oprah. In determining if Fair Use of a copyrighted work exists, there will be four factor balancing-test:
-the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
-the nature of the copyrighted work;
-the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
-the effect of the use upon the potential market for or value of the copyrighted work.
The Court determined that “Own Your Power” constituted Fair Use and was used in good faith. The phrase was used in conjunction with images and other words that convey the “overall message of self-empowerment” that are associated with Oprah. So Oprah wins!
That concludes our Intellectual Property lesson for today!