Saturday, January 16, 2010

SarcMark - a ©opyright protected, registered TradeMark and Patent pending punctuation mark


People one can now make a sarcastic notice 'markable' by using the SARCMARK TM. Of course anyone needs that¤(1). Interesting though is the use of different rights regimes to protect it, "equal rights for sarcasm"® the website claims(2): One claims copyright protection, made a trademark registration and there is a patent pending. On top of that Sarcasm is exploiting a punctuation mark with a licence.

Copyright protection
Copyright automatically is a right that derives from the sole creation of a work in the literairy, scientific and artistic domain(3). Still a work needs to be original and has to carry out the personal imprint of its creator. Sarcasm on the other hand is an abstract definition and it is difficult to capture it visually. I often misunderstand people in these sarcastic matters when it only comes in writing. So yes, I always missed the punctuation mark on my laptops keyboard ;) (-^').

It is with some doubt that the "dot with a squiggle" meets that criterium of copyright protection.

TM-registered
A trademark is a sign that distinguishes a company's goods or services. I think that SARCASM Inc. took the right decision to register(*) the punctuation dot with squiggle mark. Though isn't it strange to register a trademark and then you sell it non-exclusively towards online purchasers? In most times trademarks are being sold non-exclusively when one exploits a franchise-enterprise. But now it is being 'franchised' to a unknown number of individuals.

Though the value of the trademark registration that allows the registree to prevent the use of his punctuation mark is rather increased compared to the sole trademark use.

Patent pending
About the pending patent I have thought a while, but it actually make sense. First it has many similarities with the @-sign. Its first known use was by Medieval
munks to abbreviated the Latin word ad (at, toward, by, about) and used commercially by merchants to symbolize the word "per" (price "per/@" piece) and other similar uses(4). Nowadays the @-sign is commonly used in emailaddresses, since its introduction by Ray Tomlinson in 1971. He introduced this usage as a new form which didn't exist. Though as far as my research goes, it wasn't patented for this use.

Secondly patents can be granted, though it very much depends per country, that an invention claims to be new, inventive and useful or industrially applicable (5). Back to the SARCMARK:
  • the sign is new, since it has not been used for this purpose AND
  • inventive, probably a skilled person would not have come up with this solution to a social-cultural problem of 'not understanding sarcasm' AND
  • useful (that one is subjective and questionable), one could say it has a clear purpose, but if anyone would use it is worth a second thought, OR
  • industrially applicable, one could say that the sign is to be used in digital communication.
Until I could get a hand on the patent application, my guess would be that a patent might be granted*.

The software license
You acknowledge that the SarcMark Software is made available to You for Your personal use only and that You may download the software onto only one computer hard drive. Commercial use of the SarcMark Software must be approved in writing by Sarcasm, Inc. and its wholly owned subsidiary New Write, LLC. You agree not to (and agree not to assist or facilitate any third party to) copy, reproduce, transmit, distribute, publish, commercially exploit or create derivative works of the SarcMark Software(5).

The license only mentions terms and conditions relating to personal use of the SARCMARK software. Leaving the TM-issue mentioned above aside, the purchase of the SARCMARK Software does include the punctuation mark (remember the dot with squiggle). Does the license then include the terms and conditions for the use of the SARCMARK punctiation itself? The license is unclear about this. But since you purchase the license for the software just to use the mark, there are no limitations to the use of the mark itself.

So basically the use of copyright to protect a new introduced punctuation mark does work. But when one builds software around it, together with the software license, that allows the use of the software, it automatically means that there is a build-in license to use the punctuation mark itself without any restrictions that exceeds the original 'use of software' license.
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(1) instead of the 'real mark' I have used this punctuation (Ctrl+Alt+4 on a QWERTY-keyboard)
(2) SARCASM Inc., Overview, at: www.tinyurl.com/sarcmark.
(3) Art. 2 Berne Convention on literary and artistic works for the protection of literary and artistic works (Paris Text 1971).
(4) wikipedia contributors, "At-sign" at: http://en.wikipedia.org/wiki/At_sign#History, 18 january 2010.
(5) Terms and Conditions of SARCMARK INC..
(*) Please note that I used the mark through copy-paste option as a way of "fair use"/used the citation-exception. www.tinyurl.com/sarcmark.
(*) I found the registration of the SarcMark TM registration: http://tess2.uspto.gov/bin/showfield?f=doc&state=4009:s2rgj0.2.1
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