Monday, April 13, 2009

'AstroTurf' vs. 'astroturf': can a trademark owner control uses of its mark in a news article?

Liberal blogger Matt Yglesias has a post raising an issue that I've always felt was silly but which I've never seen definitively resolved: is there a non-frivolous claim against a newspaper for improperly genericizing a trademark?

Yglesias noted that yesterday's Paul Krugman's column refers to the ongoing "tea party" protests as "AstroTurf (fake grass roots) events." Yglesias doesn't like that the column uses the proper trademark term "AstroTurf," and suggests "astroturf" would have been more appropriate:
They’ve got that capital “T” in “AstroTurf” because it’s an actual brand name, like Xerox or Kleenex, and not just a generic term for fake grass. But Krugman is using a metaphorical extension of the term that’s common political discourse. An astroturf operation is a fake grassroots operation. It’s not not a brand name, it’s just a word, albeit a word based on the brand. I think the Times has made the wrong call here.

On the other hand, the company that owns the AstroTurf trademark presumably feels compelled to dispute the use of its mark as a generic term for fake stuff. A blog can fly under the radar easily enough, but the NYT might be exposing itself to legal harassment if they let Krugman write “that’s nothing new, and astroturf has worked well for Republicans in the past.”

Is the part about "legal harassment" plausible? Sure, any trademark owner can fire off a letter, but can the AstroTurf people actually demand that the Times not use the word "astroturf" pretty much however it wants in a news article? I seriously doubt it. Without delving too deep into trademark doctrine, it seems to me there are numerous reasons why the owners of the AstroTurf mark couldn't stop the Times from using "astroturf" as Yglesias suggests, most obviously that it would be a non-commercial, non-trademark use that is fully protected by the First Amendment. In sum, the Times isn't selling a competing fake grass product; it's merely using a word--albeit one inspired by a trademark--to make a political point.

So I think the most the AstroTurf people could do would be to send a letter to the Times saying something like: "We have a valuable brand that we'd like to keep from going generic, and we'd really prefer that you only use the term 'AstroTurf,' and only to refer to our product. Pretty please." But any suit against the Times for "misusing" a trademark in a news article would be a loser.

Any trademark lawyers out there? Am I missing something?


  1. Ben

    You're not wrong, but there's no story here. The story suggests that a company might have a problem with Krugman's use, but there's no indication that "the Astroturf people" is doing something to stop it.

    Companies with brand names, such as Xerox and Google, do have awareness campaigns about genericizing their trademarks. I don't think they sue over uses like this, however.

    Mark Jaffe

  2. Thanks. To be clear: the AstroTurf people have made no claim against the Times. My post was just based on Yglesias' speculation that the reason the Times used "AstroTurf" instead of "astroturf" was to avoid "legal harassment." My point was simply that the Times wouldn't have anything to worry about if they *had* used "astroturf."

  3. I don't think the absence of capital letters would make a difference.


  4. It's likely that their dictionary automatically corrects astroturf to AstroTurf/that their internal style manual requires it to be used that way.

    Anyways, I suppose you could try for an inducing genericide claim. :)

  5. Having always associated the term "AstroTurf" with fake grass originally developed by Monsanto, I was surprised to note via a quick web search that the term "astroturf" appears to have for quite some time dating back to the 80's been used to denote activities trying to look as if they are honest to goodness grassroots campaigns.

    I regret not knowing about such usage a year ago when here in Orlando the powers that be trotted out a gaggle of purportedly grassroots campaigns in support of essentially giving the local NBA franchise a new sports arena. These campaigns were as phony as a $3 bill, and it would have been helpful to call them for what they were...astroturf campaigns

  6. Well, there was a period of time in the 80's, IIRC, where Coca Cola was making newspapers and magazines put a mark after Coca Cola to note that the term is a registered trademark, so you'd be reading a magazine article and see a TM or an R (I forget which). It was ridiculous.


  7. Apparently no attorneys have looked up the trademark. I have. The first use of AstroTurf was in 1987 and was a logo for hats and shirts by the G&S company, and then again with in a new style with graphic arts with a piramid like letter "A" in the same year by the same company.

    Then in 1988 begin use of a new design like grass background, but filed in 1989 by Astroturf Industries.

    Also in 1988, the Monosanto company filed for the use of the letters in a stylized form.

    The NYT did NOT use the stylized form of AstroTurf (without space between the two words)

    As previously written, there is no case here.

    Personally, any company that becomes "generacized" should be happy that their brand name has achieved national recognition. Corporations spend billions of dollars each year to have that status. Like Rush Limbaugh, if you call in to his radio station's telephone number while he is on the air, IT DOESNOT MATTER IF YOU LOVE HIM OR HATE HIM, HIS RATINGS GO UP, AND SPONSORS PAY MORE PER MINUTE AND RUSH LIMBAUGH TAKES HOME INCREASED AMOUNTS OF CASH. IT IS A MONEY GAME. WHY FIGHT SUCCESS? Like two youthful brothers who grow-up to become prize fighters against each will earn the bigger purse, but when they go home, the money is all in the same family. and so it is with corporations too, after all the federal government considers a "corporation" as a "person."


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