Sticks and stones may break my bones, but words are intellectual property

So Apple has started suing people for using the word ‘pod’ in the context of digital media. Very selectively, though: it doesn’t want companies offering products or services called ‘pod’ this or ‘podcast’ that, but it doesn’t seem to have lambasted the BBC for offering podcasts. Announcing his own product called ‘iTV’ indicates that Steve Jobs’ knowledge of British TV companies is a bit vague, but you’d think even he couldn’t miss the Beeb, let alone his crack team of homicidal lawyers.

Maybe Apple thinks it’s good for major organisations to offer podcasts, because people will want iPods to download them to, but not so good for smaller companies to sell pod-thingies, because they might get a free ride off Apple’s success. If only trademark law let you have it both ways like that. It doesn’t, of course. If you try to prevent someone using a mark or word that you’re claiming as a trademark, while letting every other Tom, Dick and Harry use it without a peep, you won’t get very far.

Apple isn’t completely daft to think it should have exclusive use of the prefix ‘pod-’ to refer to digital media. Using the word ‘pod’ in this context is original and distinctive, as a trademark should be; it’s not like trying to claim ‘tunes’ as a trademark, for example. But the genie is well out of the bottle by now. A podcast is a podcast, and ever more shall be so; and inevitably people will use ‘pod’ in the names of products and services related to podcasting, without intending any reference to the iPod. The fact that ‘podcast’ came from ‘iPod’ in the first place is pretty much irrelevant.

Now, if Apple had invented the term ‘podcast’, it really would have had something to trademark. But that was Ben Hammersley, suggesting names for an activity not invented by Apple but popularised by various free programs, including one that had been called iPodder until Apple’s lawyers nixed it.

That’s the thing about intellectual property: it’s supposed to enable you to protect your ideas, not to squash other people’s.

Oh, all right, that isn’t what it’s supposed to do at all. It’s supposed to facilitate the concentration of capital. But that’s what it ought to be supposed to do.

Tagged as: Apple, Copyright, iPod, Language, Law, Media