Roundup Not Ready

By Mark McKenna

In another example of trademark enforcement on steroids, we have

Monsanto’s recent demand that the author of the Bitter Greens Journal blog stop using Roundup Ready as the header for a series of blog posts. See Overlawyered and The Trademark Blog.

I find it extremely hard to believe that Monsanto has any kind of claim here. But it’s almost impossible anymore to know for sure that a trademark claim is specious. As I noted before, and as Eric lamented, trademark law is rapidly expanding to the point where any use of another’s trademark is an infringement, regardless of how it’s used.

What the Monsanto example demonstrates, I think, is that trademark owners think we’re already at the point that they get to control any and all uses of their marks. Monsanto’s first objection to the Bitter Green Journal’s use of Roundup, ready was:

1) You are using our trademark without our consent. This use of the term could cause your readers to think that your journal is in some way sponsored by Monsanto or that Monsanto supports the positions set out in your journal.

Sure they wind up couching the objection in terms of confusion, but do they really think anyone will be confused? I doubt it. I suspect that the first sentence really captures their complaint – someone used their mark without their consent. Period. We need to figure out how to stop the momentum in this direction.