aTypical Joe: a gay New Yorker living in the rural South

Friday, August 31, 2007

Thumbs down on Ebert’s trademark claim

I’ve only peripherally been aware of the dispute around the “thumbs up” trademark claim made by Roger Ebert.

The Chicago Tribune goes to Intellectual Property Answer Man:

Q: So if Richard Roeper or his new semipermanent guest host, Robert Wilonsky, flashes a thumbs-up sign, Ebert could sue him?

A: In the opinion of intellectual property/entertainment lawyer E. Leonard Rubin, no. Ebert and Siskel trademarked the “thumbs up"/"thumbs down” catchphrases in relation to movies, and “Two Thumbs Up” has become a powerful identifier for the show as well as a potent marketing tool for the studios. But the gesture of raising or lowering thumbs to indicate approval or disapproval dates back to ancient Rome, so it’s not original and cannot be trademarked. “Disney cannot use [’Two Thumbs Up’] to indicate the show,” Rubin said. “But people on television during the show, I believe, are not prohibited from using a gesture thumbs-up or a gesture thumbs-down: ‘I liked it,’ ‘I didn’t like it.’ ”

Ron Coleman agrees. But:

...what about the fuss we made a while ago about the Jay-Z / Diamond Dallas silly hand gesture dustup?  Would the same reasoning apply?

It would — only the result might well be different, because (despite the sarcasm displayed at the time here) unlike the thumbs up / thumbs down gesture, the particular combination of joints at issue in the rapper-wrestler case seems relatively novel and, for its utter incomprehensibility, pleasantly arbitrary – as a good trademark should be.