GlaxoSmithKline brand Horlicks made the national news headlines last month. Not because of a new ad burst on TV, revamped packaging or even a radical change of ingredients to the nation's favourite malty bedtime drink.
It was Foreign Secretary Jack Straw's comment on the now infamous Alistair Campbell's "dodgy dossier" on weapons of mass destruction: "It is not remotely in the government's interests to produce a document with this provenance. To put it in the vernacular it was a complete horlicks in the way it came to be produced."
Straw's choice of the word Horlicks may have appeared somewhat obtuse. Unless of course you remember the humorous advertising campaign a couple of years ago where "Horlicks!" was used as a substitute swear word "b!" This wasn't done by Ovaltine in some comparative advertising context but by Horlicks itself in its own advertising.
Straw, of course, is too diplomatic as to come out with that sort of language so what a load of Horlicks, eh?
Of course, the marketing director of Horlicks wasn't too pleased about the use of the Horlicks brand in this light -- and appeared on the 'Today' programme to say so.
More recently, we've been hearing a lot about spam. Not the canned variety bought at the local supermarket but the electronic kind. And the government wants to take action against spam as reported in this column a few weeks ago.
Flash back to 1970. Eric Idle asks Terry Jones (dressed up as a waitress) what's available for breakfast.
"Well, there's egg and bacon; egg, sausage and bacon; egg and spam; egg bacon and spam; egg, bacon, sausage and spam; spam, bacon, sausage and spam; spam, egg, spam, spam, bacon and spam; spam, sausage, spam, spam, bacon, spam, tomato and spam." says Jones.
A group of Vikings, seated at another table, begin to chant, "spam, spam, spam, spam...." The conversation continues until the Vikings drown it in song: "Spam, spam, spam, spam. Lovely spam! Wonderful spaaam! Lovely spam! Wonderful spam..."
You get the picture.
Fast forward to today. It's an adman's nightmare. Having spent 33 years teaching the world that spam is good for you and having to endure the likes of 'Monty Python's Flying Circus', sales of that tasty luncheon meat product had been quietly on the increase.
Now everyone hates spam, it seems, apart from the "spammers". And not surprising, Hormel Foods of Austin, Minnesota, which manufactures the stuff, is sick of its trademark being used as a term for junk email.
Spam fact: more than 6bn cans of the meat have been sold since its launch in 1937.
But you and I are more likely to associate spam with unsolicited commercial email messages, a larger number of which are sent across the internet every day than the number of cans of spam sold since 1937.
Now, Hormel is asserting its intellectual property rights against SpamArrest LLC, a spam-filtering company based in Seattle which, in its opinion, is damaging its goodwill and reputation. SpamArrest has responded, telling Hormel that it is "acting like a corporate cry baby and ought to can it".
The very first known unsolicited commercial email attack was back in 1978, sent to users of Arpanet, the predecessor of the internet. It advertised a DEC 10 computer to all Arpanet users in the west of the US.
It wasn't until 1994 that the term "spam" was coined for junk email. In that year, two lawyers in Phoenix, Arizona flooded newsgroups with an email promoting their services. Someone (nobody seems to know who) compared it to the 1970 Monty Python sketch in which spam was unavoidable.
For the last nine years, Hormel has tolerated the use of the term for junk email, despite holding a registered trademark for it in more than 100 countries across six continents (it obtained a Community Trademark in 1996).
Increasingly, however, when people think of spam, they think of something distasteful. In May 2003, software company MessageLabs reported that junk email now accounts for the majority of all internet email (55%).
Hormel has acknowledged that it can't stop the use of its mark for junk email; but what it does want to do is stop the use the word in other trademarks because Hormel feels that this will impact on the distinctive character and repute of its own mark.
It tried this last year in an action against Antilles Landscapes Investments NV, which wanted to register the trade mark "Spambuster" for filtering software services.
The UK Patent Office ruled that users of the Spambuster services would understand the difference between the products and "did not consider that there would be any adverse consequences" to Hormel's mark in relation to its tinned meats.
Hormel's invalidity action failed.
Position under English law
The result may have been different had Hormel been able to satisfy the court of malicious falsehood (otherwise known as trade libel -- see 'Essential Law for Marketers'). But the facts weren't there to support such an action.
In order to succeed, any written or oral falsehood must have been made maliciously. This is the case even where the statement isn't defamatory and wouldn't ordinarily lead to a claim. In order to succeed, it's essential that the statement made was false and that it was published to at least one person other than the claimant, that it was made maliciously and the claimant is likely to suffer financial loss.
Unlikely that GSK could have brought an action against Jack Straw then.
In the US, where these matters are treated a bit like life and death, Hormel is undeterred.
The brand owner has asked the US Patent and Trademark Office to overturn SpamArrest's eponymous trademark, recently granted for use as "computer software, namely, software designed to eliminate unsolicited commercial electronic mail" and another trademark for SpamArrest that is currently pending, for use in "online computer services."
Hormel argues that the public might be confused or might think that Hormel endorses SpamArrest's products.
But Brian Cartmell, President and CEO of SpamArrest LLC, countered, "Hormel is acting like a corporate crybaby and ought to can it."
He continued: "Spam is a common term describing unsolicited commercial email and even Hormel says on its own website: 'We do not object to use of this slang term to describe UCE, although we do object to the use of our product image in association with that term.' Dozens of companies use the word 'spam' in their legal and commercial names and no one confuses any of us with the Hormel canned meat product."
Seattle lawyer Derek Newman, who represents SpamArrest, adds: "Inexplicably Hormel is challenging anyone who uses the word spam as part of a trade mark. Spam has become ubiquitous throughout the world to describe unsolicited commercial email. No company can claim trademark rights on a generic term. SpamArrest is both our corporate name and an arbitrary trade mark. We are not claiming the right to use the generic term spam alone, but we will protect the name of our of our company and the brand of our product."
The cases are pending before the Trademark Trial and Appellate Board. Hearings have not yet been scheduled. Unlikely that the US courts will give a FCUK about spam but you never know.
Ardi Kolah is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online
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