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.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.
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.”
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?