Marty Schwimmer’s coverage of Monsanto’s cease-and-desist demand over a blog critic’s use of the phrase “Roundup, Ready” raises a question.
The blog used “Roundup, Ready” as the title of a post criticizing Monsanto, producer of “Roundup” and “Roundup Ready” seeds. Here’s the interesting part of Monsanto’s demand notice:
You are using our trademark in an incorrect manner (with a comma and in a way that genericizes the mark). This weakens our trademark rights.
Here’s the question: If the accused’s the use of the mark is neither confusing nor deceptive, does the owner of the mark have a legal claim founded on a general right-to-prevent-genericide? I assume that the claim would lie, if it lies at all, under dilution, even though it doesn’t track the conventional dilution categories — “blurring” and “tarnishment.”
My intuition is that the answer is “no”; here’s a point (doctrinally) at which trademark law has to give way to the First Amendment (so the “use” of the mark is noncommercial and/or part of news reporting or news commentary), and a point (in policy terms) in which public interests in being able to classify and talk about the world trump private interests in competitive advantage.