Can "How" Be Owned? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Can “How” Be Owned?

Can “How” Be Owned?

“How matters.”  The new Chobani marketing campaign is centered on this concept, but the essential question is does “how” really matter.  Harvard Law graduate, Dov Siedman, entitled his book, “How: Why How We Do Anything Means Everything”.  Dov Siedman has created his entire business on three little letters, “how”. Mr. Siedman claims that he has intellectual property rights vis-à-vis the word “how” and has thus sued Chobani for stealing his entire business conception.Mr. Siedman has asked the court to order Chobani to stop the campaign after filing a lawsuit against Chobani and its advertising agency.  Naturally, Chobani believes this lawsuit is entirely arbitrary and has requested that the court throw out the lawsuit.  Their defense is that the conceptualized idea, “how”, is too broad.  The twist here is that Chobani has also filed a trademark application for the phrase, “How Matters.”  Chobani cannot sincerely believe that “how” is too broad when the company itself is requesting that their trademark application be granted.Trademark issues typically involve companies of different sizes. At first glance, this may seem like a David and Goliath issue, however Mr. Siedman’s company is not small either.  In fact, his business model has proven to be quite successful, with clients such as the National Football League and Johnson & Johnson.  In other words, Mr. Siedman is a major player when it comes to his own business, which we can’t forget is modeled on the word “how.”

Both sides undoubtedly have valid points.  Chobani’s strongest claim, however is that trademarks are there to ensure that businesses’ identities are made material.  They claim they have two entirely different products and consequently there is no way that either business will be mistaken for the other.  Perhaps Chobani is stretching.

Part of the problem with this case is that the word “how” is too wide-ranging.  Should Mr. Siedman win this case, his victory would result in a snowball effect.  Many other individuals would start to make ridiculous and outlandish claims that generalized concepts or even other elementary words such as “I” or “the” also belong to them.  At a certain point, however, it should be noted that general language cannot be hijacked from the public for one’s personal and/or business purposes.  To the contrary, it inherently belongs in the public domain.

Compare “how” to “Apple.”  Apple is also a common term in the English language.  In fact, “Apple” has been sued many times for trademark infringement but the giant conglomerate has always come out on top.  The difference between Apple’s case and this one is that “Apple” refers to a specific, tangible object. “How”, on the other hand, is not even a concept.  It functions as a cornerstone part of the English language.  One has to ask, how on earth could “how” belong to one person.  Mr. Siedman has a business to run and that is understandable, but he should not do so at the expense of taking it away from the public domain.

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Shawn Fateh

Shawn Fateh is a second-year student at Fordham University School of Law and a staff member of the Fordham University School of Law Intellectual Property, Media and Entertainment Law Journal.