Megan Markle and Prince Harry’s company, Archewell Audio LLC, has filed a trademark application for the word “ARCHETYPES” in relation to the podcast they were paid to produce by Spotify. The media, in what appears to be typical fashion for the ex-Royals, has managed to stir up outrage over what is in fact very common business practice.
Some Twitter users reacted angrily to a Daily Mail headline that proclaimed: “Now Meghan is trying to trademark the word ‘archetypes’: The Duchess is offering to stop anyone from using the word – which first appeared in English 470 years ago – after deciding to use it for the title from his Spotify podcast”. The headline and reactions on Twitter show a clear misunderstanding of how brands actually work.
In Australia (and the United States, where Archewell Audio’s application was filed), trademarks may be granted for any word, newly created, old or intermediate, so long as the word is capable of distinguishing the goods or services claimed from those of other traders. The Trademark Office and the courts are rushing to prevent anyone who tries to “close the commonsof the English language in order to prevent the use of normal descriptive terms by commercial competitors. However, provided that an existing word does not describe particular goods or services, and another trader is unlikely to wish to use the mark for their own similar goods or services, a mark will be potentially registrable.
There are many examples of well-known words being used as trademarks. For example:
- APPLE (derived from the Latin Abelle) is both an old existing word and a well-known trademark belonging to Apple Inc in connection with computers. This does not preclude greengrocers from using APPLE in their fruit sales, nor would the mark be registrable for such products. Members of the public can still use the word apple, although they may need to clarify whether they are referring to the fruit or a computer if it is not clear from the context.
- DAILY MAIL (Daily derived from daeglic (Old English 450-1150) and to post derived from Male (Middle English 1150-1450)) is a well-known phrase in common use which has nonetheless been registered by Associated Newspapers Limited for a wide range of goods and services, including not only the provision of news and cultural programs but also teaching aids, art materials, computerized accounting services and health club services, to name a few examples. This does not mean that a postal company could not advertise that it delivers your “daily mailas Associated Newspapers Limited’s records do not cover such services, and the words “daily mail” are normally eligible for registration in connection with such services, as they are descriptive.
It remains to be seen whether “ARCHETYPES” is considered descriptive of any of the goods or services covered by the Archewell Audio application. This will be determined by an examiner from the United States Trademark Office, who will also examine whether the mark is too close to any prior registration, before rejecting or granting the application for registration. If accepted, the request will then be open to opposition from other traders likely to be affected by the registration. Either way, no one will be prevented from using the ARCHETYPES, except perhaps if they want to use it in a trade related to a narrow range of services such as “a series of podcasts in the areas of the cultural treatment of women and the stereotypes women face”. It doesn’t seem very likely.