With the recent ruling in the Apple-Samsung lawsuit, patent law has been much in the headlines of late. And in this column, we have discussed the nuances of copyright rules on several occasions. But the third major type of intellectual property in America is the "trademark," a protection for the sign or indicator of a specific product which allow consumers to trust that that product actually originated with the holders of the trademark.
Typically, it's applied to a name, a logo, a design, a symbol or some combination thereof, and trademarks are often the subjects of bitter legal disputes. It's surprising how many popular songs incorporate trademarks into their lyrics - and it's illuminating to look back on how that usage was either tolerated or prosecuted.
While the earliest trademark was issued in 1884 (for the logo of Samson Rope, a company still in existence - and still using the logo it trademarked 128 years ago), the earliest examples of trademarks showing up in song lyrics seem to date back to the 1940s (although it would come as no surprise to Craven if he learned there were earlier instances).
Sometimes, trademarks are used in lyrics to give a song a certain cultural relevance and timeliness, and it was to that effect that songwriter Cole Porter often put trademarked brand names. In his "You're the Top," Porter incorporated at least 10 trademarks, including Ovaltine, Pepsodent, Phenolax (a then-popular laxative) and Cellophane. (The latter would go on to lose its trademark protection in America two years after Porter wrote "You're the Top," when a court decision found that the word had become a "genericized trademark," meaning that it had come to represent an entire class of products. Nowadays, it is proper to refer to it as lower-case "cellophane." Other examples of genericized trademarks include "aspirin," "zipper," "yo-yo" and "kerosene," all of which were at one time protected names.) Later writers would utilize trademarks in a similar manner. Warren Zevon, for instance, compared a girl to a Waring blender in "Poor, Poor Pitiful Me," and name-dropped Smith-Corona typewriters in "Carmelita."
In the late 1940s, practically an entire sub-genre of popular music arose devoted to the medically dubious and highly alcoholic vitamin supplement known as "Hadacol." There was "The Hadacol Boogie" by Jerry Lee Lewis, "Hadacol (That's All)" by the Treniers, "Hadacol Bounce" by Professor Longhair, and many others. Unfortunately, the market for Hadacol songs collapsed at the same time Hadacol itself left the market, less than two years after it was introduced.
Next week, we'll look at how the use of trademarks escalated in the rock era, including how one of the most popular songs of 1970 had to be changed to remove one. And we'll examine what is probably the most high-profile trademark infringement case ever brought against a record label for the use of a trademark in a song's lyrics, and what it tells us about intellectual property rights.
Notes is supported by the Gay and Lesbian Fund, promoting literacy through community libraries in Colorado.
Craven Lovelace produces Notes, a daily cultural history of popular music, for KAFM 88.1 Community Radio, kafmradio.org. You can visit cravenlovelace.com for more of his musings on the world of popular culture.