How to price words and things

Joel Helfrich

In 1988, a group of investors including Pat Riley, then-head coach of the Los Angeles Lakers, filed papers with the United States Patent and Trademark Office to register the sports word “three-peat” under his corporation, Paperon de Paperoni (now Riles & Co.). At that point, Magic Johnson and James Worthy were hoping to lead the Lakers to their third consecutive championship, a feat that had not been accomplished since Bill Russell played for the Boston Celtics. The Lakers lost the series to Detroit. Riley kept the trademark on “three-peat” and now owns exclusive rights to the phrase. We can say “three-peat,” but if we use it on the sales of licensed merchandise that bear it, Riley gets a slice of the money although he admitted that he did not coin the word. “Three-peat” had long been a cliche in the sports world.

Michael Hunt, a journalist for the Milwaukee Journal Sentinel, said Riley made up to $150,000 in licensing rights when the Lakers beat the Nets last June. Some business insiders estimated that approximately $3 million in “three-peat” goods were sold after the Lakers won their third

consecutive title and that Riley’s take was approximately 5 percent. Eric Zorn of the Chicago Tribune estimates Riley has made “about a million dollars” overall since he patented “three-peat.”

As Dave McKenna, in his hilarious look at trademarks in the June 2002 article in the Washington City Paper, said, “A perusal of the Patent and Trademark Office’s database shows that misguided gold diggers have, in the years since Riley’s filing, registered pretty much every variation of ‘repeat.’ ‘Four-peat,’ ‘Fourpeat,’ ‘IV Peat,’ and ‘4-peat’ are taken. So are ‘Four Peat’s Sake’ and ‘Four Repeat’s Sake.’ And ‘Five-Peat,’ ‘5 Peat,’ and ‘V Peat.’ The line between clever and stupid got straddled by whoever registered ‘two-peat’ and ‘2 Peat.’ There’s no straddling with the registration of ‘1-peat,’ ‘one-peat,’ and ‘onepeat.’ Ö ‘Infini-peat’ has already been spoken for.”

Patenting culture

Patents, unlike most trademarks, are not always so harmless. According to Minneapolis-based Pliam Law Group, “Patents protect new inventions, discoveries and designs, while copyrights protect

original works of authorship such as paintings, computer programs, sculpture and architectural designs. Trademarks do not protect creation or inventiveness at all. In fact, a trademark can be acquired with no creative or innovative input from the owner whatsoever.” Hence, Riley’s “three-peat.”

RiceTec Inc., an “integrated rice company specializing in the breeding, development, production and marketing of high value rice products,” according to its Web site, recently came up with names such as Jasmati Rice, Kasmati Rice, Sushi Rice and my personal favorite, Texmati Rice – a wonderful blend of good ol’ boy culture with Southern culture – after the company failed in its attempts to patent basmati rice and jasmine rice. Of note is that RiceTec’s CEO is of South Asian ancestry himself. In 1998, Thailand fought back against RiceTec’s efforts to patent jasmine rice. Similarly, India was able to get RiceTec’s trademark application in Britain and Greece rejected because all these names were deceptively similar to basmati, an aromatic rice grown in northern India and some parts of Pakistan.

In recent years, U.S. companies attempted to patent turmeric and the neem tree, not to mention the herbal tea Rooibos from South Africa. In fact, the United States and the Netherlands registered the word “rooibos” as a trademark in 1994. The Eastern Cape Herald recently reported that South Africa’s Department of Trade and Industry “has proposed urgent bilateral talks with Washington in a bid to assist South African farmers in their fight to use the rooibos name in the United States.” Because of such patenting (and trademarking), countries are forced to compile databases of generic “words and indigenous names to proactively address future problems that might arise.” These databases enable countries “to determine what other indigenous names had been registered as trademarks elsewhere.”

According to last week’s Wall Street Journal article titled “Europe Says, ‘That Cheese Is No Cheddar!’ ” European negotiators to the World Trade Organization are attempting to have “food names (that are) associated with specific regions Ö reserved solely for companies located there.” Such measures would protect, for example, the United Kingdom’s “cheddar cheese,” the Czech Republic’s “pilsner beer” and Italy’s “balsamic vinegar.” European countries, along with India and Thailand, argue, “It’s all about protecting what is rightfully theirs.” Nonetheless, for good old “New Worlders, the European idea is bald-faced protectionism. ‘This doesn’t speak about free trade, (it’s) about making a monopoly of trade,’ ” complained Sergio Marchi, Canada’s ambassador to the WTO. As Europeans and Indians astutely note, however, the current trademark and patent system “puts too much burden on the maker to find and point out the offenders.”

Just one year ago, London’s Observer reported there were more than 100 Indian plants awaiting grant at the U.S. patent office. Patents already have been granted to uses of “Amla,” “Jar Amla,” “Anar,” “Salai,” “Dudhi,” “Gulmendhi,” “Bagbherenda,” “Karela,” “Rangoon-ki-bel,” “Erand,” “Vilayetishisham” and “Chamkura.” Perhaps more frightening is that nearly five years ago, a German company trademarked the term “vastu,” an ancient Indian architectural practice. Now, the oldest Sanskrit texts of India, the “Vedas,” as well as the word “Ayurveda” and the powerful “Gayatri mantra” have also been trademarked – not by India, but by German companies.

Conclusion

The West’s obsession with patenting words and food obscures more pertinent struggles surrounding the genetic manipulation, modification and patenting of genes, as well as the demand for access to generic medicines to deal with the AIDS pandemic, particularly in places such as southern Africa, Asia and South America. All of these gyrations, mainly by U.S. companies, beg the questions: What real inequalities belie the insanity surrounding patenting? Is language intrinsically bound to nation? What drives the desire to patent words and foods not indigenous to the West? In short, it is not simply the mechanisms of market-driven economies, but unfair trade regimes. The overzealous desire to patent has severe consequences in maintaining global inequality. The world of patenting, in a word or two, is systemic madness.

Joel T. Helfrich’s columns usually appear alternate Tuesdays. Send letters to the editor to [email protected]