Intellectual Property Reaches the Ridiculous: The Legal and Moral Battle Over the Word 'How'

There are moments when we may rightly feel compelled to ask whether the big data/knowledge economy has sharpened our insights - or just rendered us oblivious to common sense.

Last year witnessed the battle over who owned the color red. Or more specifically, which shoe designer owned the application of said color to the soles of the products that business produced. Christian Louboutin won that epic battle, though the courts rendered a somewhat Solomonic decision, limiting that right to soles, not to other parts of the shoe, nor to the entire color.

If that dispute - let alone decision - seemed a bit silly to those who do not customarily drop $500 on a pair of kicks, well, at least the application was specific enough to be understandable.

Now, as the following article explains, we are confronted with a legal battle over the use of the word 'how.' The contestants are a company that makes Greek style yogurt and a consulting firm specializing in creating ethical corporate cultures. There is no doubt a connection there, though it may escape those who do not possess a finely honed sense of the absurd.

The real issue would appear to be whether knowledge has fostered notions of arrogance that defy not just common sense and usage, but also the trends in socio-economic development. The hundreds of millions that Apple, Google, Samsung and others have thrown at debates about who invented or patented what gadget or line of software code have been demonstrably wasted. The world is moving too fast to worry about it and sustainable competitive advantage has evaporated even if speed were not a defining characteristic.  The courts in the US are increasingly expressing their frustration with this sort of grandstanding.

That one of the litigants in question - the plaintiff, in fact (the person who filed case claiming he owned the use of the word 'how') - purports to stand for ethics in business is especially ironic given that the universe of organization, operation and innovation is increasingly one defined by collaboration, not by sole ownership which denigrates the contributions of predecessors, to say nothing of common linguistic usage.

We may celebrate the fact that intellectual capital is, belatedly, enjoying a rise to financial prominence that mirrors its importance as a contributor to economic significance.But the more frequent the attempts to frivolously apply the concept to justify spurious economic ownership, the less likely that prominence will be sustained. JL

Jonathan Mahler reports in the New York Times:

Trademarks are meant not to prevent companies from stealing others’ ideas, but to protect consumers from mixing up brands. Mr. Seidman will need to demonstrate that people might be inclined to confuse a yogurt manufacturer with a company that provides consulting services.

Who owns How?

No, that’s not a line from a Dr. Seuss book or an Abbott and Costello routine.

It’s the question at the center of a bitter legal battle pitting a best-selling author and management guru against America’s largest Greek yogurt manufacturer.

The author, Dov Seidman, is in the business of helping companies create more ethical cultures. He has distilled that business to a single three-letter word: how. President Bill Clinton wrote the foreword to his book, “How: Why How We Do Anything Means Everything.” (“This is a HOW book, not a how-to book,” it begins.)

Enter the yogurt maker, Chobani. Founded in 2005 by a Turkish immigrant who was turned off by the runny texture of American yogurt, Chobani recently got into the “How” business, too. The company is in the midst of an ambitious brand campaign intended to highlight the quality of its yogurt and the way it is made, including a straining process that makes it extra dense. It is built around the phrase “How Matters.”

To Mr. Seidman, who also uses “How Matters” in some of his materials, the campaign represents a frontal assault on the brand that his company, LRN, has spent 10 years building. Chobani has stolen his “How,” he says, and he wants it back. He is suing the company and its advertising agency, Droga5, asking a court to order Chobani to halt the campaign because it represents an infringement on his trademark for the word how.

Chobani and Droga5 have responded aggressively, not only denying that they had ever heard of Mr. Seidman — let alone stolen his intellectual property — but also asking the court to cancel LRN’s trademark for “How,” saying that it’s too broad. To top it off, Chobani has filed its own trademark application for the phrase “How Matters.”

There have been trademark lawsuits over plenty of common words — “pure” or “bliss,” for instance — but perhaps never one as generic as “how.”

Generally speaking, these lawsuits fall into two categories. There are those in which small companies go after big ones. Consider the motivational speaker who recently sued Oprah Winfrey, claiming theft of her phrase “Own your power.” Or the owner of the boutique in Los Angeles called Glow who tried to stop the pop star Jennifer Lopez from introducing a fragrance with the same name.

Then there is the inverse: Big companies sue little ones. Kellogg once went after the Maya Archaeology Initiative, claiming that the bird in its logo was too similar to Toucan Sam of Froot Loops fame.

Mr. Seidman’s case doesn’t fit neatly into either category. His company is not small. It has more than 200 full-time employees — though Mr. Seidman prefers the term “colleagues” — and offices in New York, Los Angeles and Mumbai, India. The National Football League, apparently seeking a more ethical culture, is a client, as is Johnson & Johnson.

Nor is Mr. Seidman a complete unknown. He is a fixture on the international conference circuit, a veteran of the World Economic Forum, the Aspen Ideas Festival and the Clinton Global Initiative. (He has been quoted in The New York Times, and occasionally writes for the paper online.)

The other thing that distinguishes this case from a typical trademark dispute is that it is thick with irony: One company is accusing another of stealing its platform for ethical behavior.

James D. Weinberger, a trademark lawyer at Fross Zelnick Lehrman & Zissu, predicts that Mr. Seidman will not have an easy time proving his case. The strongest trademarks, he notes, cover words that have no other meanings (think Kodak), or that are being used in an unusual way (think Apple).

Mr. Seidman may be using “how” in a particular context — and in noun form — but he is still using it “in connection with its ordinary meaning,” said Mr. Weinberger. “I think these rights are very weak conceptually.”

But for Mr. Seidman, this is not principally a legal fight. “It’s a moral fight — it’s a ‘How’ fight,” he said.

Mr. Seidman, who has a law degree from Harvard, spoke inside LRN’s headquarters on Fifth Avenue overlooking Central Park. The 22,000-square-foot office is something of a monument to morality and justice. Visitors are greeted by a wall decorated with wood from an oak tree that once belonged to John Jay, the first chief justice of the United States Supreme Court. The conference rooms inside are named after moral philosophers: Immanuel Kant, Gandhi, Martin Buber.

At least in a structural sense, there is virtually no corporate hierarchy at LRN. Employees — sorry, colleagues — write their own performance reviews. Even expense reports are filed and paid without a supervisor’s approval.

From a practical standpoint, one of Mr. Seidman’s biggest concerns is that Chobani’s superior size and profile will overwhelm LRN’s: “If they become the ‘how company,’ how do I show up with ‘How’?” he said. “How can I go to companies and say, ‘We’d like to come talk to you about your ‘How’?”

According to Mr. Seidman, both Chobani and Droga5 were familiar with him and his work before starting the “How Matters” campaign during the 2014 Super Bowl. As proof, he points to a lunch meeting he had at LRN — in the Heraclitus conference room — with the vice chairman of Droga5, Andrew Essex, in March 2013. He also cites a Twitter message sent out by Chobani days before the game: “@DovSeidman: Thanks for inspiring the world to care about ‘how.’ Can you help inspire the food industry, too?”

Chobani and Droga5 declined to comment. But in court papers, Droga5, which is partly owned by the William Morris Endeavor talent agency, said that no one on the creative team for Chobani had ever heard of Mr. Seidman. The agency said the inspiration for its campaign came during a brainstorming session at a Thai restaurant with an open kitchen that underscored the importance of how food is prepared.

As for the Twitter post, Chobani said Mr. Seidman’s name was on a list of social media users that Droga5 thought might be worth alerting about the campaign.

Chobani’s Super Bowl commercial featured a live bear buying a container of honey-flavored Chobani in a country store. “A cup of yogurt won’t change the world, but how we make it might,” says the voice-over, leading into the tagline: “How Matters.”

The phrase has become an integral part of the Chobani brand. You’ll find it printed right beneath the company’s name on the outside of its yogurt containers. Strictly speaking, it is not possible to own a word, never mind one as common as “how.” It is possible, though, to develop trademark rights for a particular connotation of a word in a specific context.

Mr. Seidman claims that is what he has done with “How.” He said he introduced the word into the corporate realm and changed its usage from adverb to noun.

“They’re using ‘how’ to convey and connote that they are an ethical company,” he said of Chobani. “They are using ‘How’ exactly the way I use it. They’ve appropriated the foundation of my entire philosophy.”

Even if Mr. Seidman can prove he has been the victim of theft, that may not be enough. Trademarks are meant not to prevent companies from stealing others’ ideas, but to protect consumers from mixing up brands. Mr. Seidman will need to demonstrate that people might be inclined to confuse a yogurt manufacturer with a company that provides consulting services, or mistakenly believe that the two companies were otherwise connected in some way.

But anything can happen once a case gets to trial. “In the end, the jury may be wrestling with whether they stole this guy’s idea or not, even if that’s not what trademark law protects,” Mr. Weinberger said.

Of course, even if Mr. Seidman loses, he is by no means prepared to cede the moral high ground.

“Justice Potter Stewart said that there’s a difference between that which you have a right to do and that which is right to do,” he said. “I don’t think they have a legal right to do this. But even if they do, that doesn’t make it right.”