Frankly, I’d rather not have to write this post at all. But despite all that has been written regarding Susan G. Komen’s attempts to prevent other charities from using the phrase, “for the cure,” I still don’t get it. I just don’t understand what they are trying to achieve, nor do I comprehend their apparent failure to understand why so many of us in the breast cancer community have found it distressing and have yet to feel that Komen has addressed the issue in any meaningful way. And that’s why I’m writing this. Although I’d rather write about something more immediately germane to those of us with breast cancer, I feel compelled to remind Susan G. Komen that we would all feel better served by them if they would demonstrate better manners, priorities, teamwork and stewardship.
A lot has been written since the Wall Street Journal first reported back on August 5, 2010 that Susan G. Komen was actively pursuing other charitable organizations who used the phrase, “for the cure” in their names or events, to prevent them from doing so. It has been, as is all too often the case with media coverage, difficult to suss out the real story and the real details. A great many articles essentially re-published the WSJ report, most notably perhaps the Huffington Post, which prompted a lot of response from breast cancer survivors, among others. The response by those of us in the blogosphere has ranged from dismay to outrage that Komen would waste time and money trying to prevent other charities from using three words which are still infamously meaningless in the present context of breast cancer prevalence and mortality. Komen’s apparent rationale for pursuing the matter centers around their claim that they needed to prevent the possibility that potential contributors might get confused and end up donating to other organizations when they thought they were donating to Komen. Because, of course, anyone with a checkbook and a pen, or a PayPal account for those who contribute online, is probably too stupid to figure out who they’re supporting. Picking on other charities based on this assumption has struck most of us in the breast cancer blogosphere as spurious at worst and lame at best. My own previous blog post, “Suing for the Cure?” cited an article in Oncology Times, which included statements made by Komen’s legal counsel, Jonathan Blum, who claimed that Komen had not, in fact, filed any actual lawsuits over the phrase, but rather had “contacted” organizations in an attempt to come to an understanding. The article did not include any information about how many organizations had in fact been “contacted,” how they had been contacted, or what final understanding was reached with them.
It took Komen quite a while to respond to the media coverage. Finally, they issued a recent statement, which I am including in its entirety below.
Right. Clear as mud. In her blog, Gayle Sulik, author of Pink Ribbon Blues, responded to this statement, summarizing its few concrete details and pointing out its disturbing omissions. To quote Gayle Sulik, the pertinent items from their statement are as follows:
- Legal oppositions against other charities through the patent and trademark process: 16
- Objections filed against companies or for-profit groups: 31
- Total legal expenses last year: $515,405
- Program budget for the 2010 fiscal year for research, screening and treatment programs, education and advocacy: $283 million.
The statement does not indicate how many cease and desist letters have been delivered to non-profits and charitable organizations since the inception of the organization for trademark reasons, or how many of these occurred after Komen’s name change in 2007. Nor does it reveal how much legal work was done on a pro bono basis to offset legal expenses. Aside from providing a few clarifications, Komen’s official statement about responsible stewardship of donor funds is misleading. It does not adequately explain why the organization would engage in any activities that would undermine the ability of other charitable organizations to do their own work toward the betterment of public health and the eradication of disease.
I have a personal acquaintance with the U.S. Patent and Trademark Office, and currently, it costs $275 to file a single trademark application, and that’s only if you have everything together all at once and you are applying for the trademark to be used in only one “class” or context. Otherwise, it costs more. This does not include the hours one has to spend negotiating the process itself, which is a characteristic nightmare of bureaucracy-speak and obfuscation. Typically, the USPTO seems to refuse everybody’s initial application, necessitating the hiring of a lawyer to continue pursuing the matter, which can easily run up into four figures for just one trademark. I did a few more hours of research this morning on the USPTO’s database, and discovered some interesting facts.
The above is the extrapolated entry from TESS, the electronic Trademark Database. It comes from my search for trademarks applications containing the words “for the cure” in various forms. I’m no legal scholar, but here’s what I’ve learned so far in my adventures with the USPTO. This entry shows the “word mark,” which is defined as a phrase of simple words, without art or design work, that is being trademarked. If you want to trademark a word mark that is part of a design, you have to file a separate application for that. The rest of the entry is fairly self-explanatory. I was actually surprised and a little appalled to find that SGK had trademarked the phrase, “For The Cure,” all by itself, because the USPTO is generally loathe to permit anyone to trademark a common-language word or phrase. But the catch here is, all trademark applications have to specify the context in which a trademark will be used, thus narrowing the legal protection of a registered trademark to that specific context only. Therefore, Komen is only entitled to use the phrase, “For the Cure” as a trademark on its own in the context of the Goods & Services it specified in its application, which, in this case, is in their “newsletters on the subject of breast cancer research and issues related thereto.” If other people happen to use “for the cure” as a phrase, say, in an article about brain cancer research, Komen has no legal standing to object to that. Nor does this particular trademark protect other phrases that may include the words “for the cure” that may be used as trademarks in different contexts. In order to protect any other phrases incorporating those three words in other contexts, separate trademark applications must be made for each instance.
Confused yet?? Well, this is where it gets interesting. When I did a search for any trademark applications including the word mark, “for the cure,” I found that there are currently 232 “live” applications and 268 “dead” ones. Live applications are those which are either in the process of being considered for approval, or which have been approved and granted trademark registration. Dead ones are those that have been abandoned, either because the applicant did not see the process through to registration or because they no longer use the registered trademark anymore and allowed it to lapse. Trademarks are granted for ten-year periods and must be renewed at the end of that period. In any case, Susan G. Komen has registered trademarks for one hundred and fifteen phrases that contain the words, “for the cure,” which cover the years from 1999 to 2010. So, let’s just say, for the sake of simplicity, that each of those applications cost $275, plus, say, a low estimate of $1500 in legal follow-up, which adds us to $1775 per trademark. So, that figure multiplied by 115 successful trademark registrations equals $204,125. The phrases that are trademarked by Komen include such expected items as “Race for the Cure,” and “3-Day for the Cure,” as well as some puzzling items, like “Shoot for the Cure,” and “Spit for the Cure,” the latter of which is a specific program that collects saliva samples for a medical genetic registry. They also own the trademark for “Men for the Cure,” but the USPTO entry includes the reassuring phrase, “no claim is made to the exclusive right to use ‘men’ apart from the mark as shown.”
There are also seventy trademarks on the live list that have been successfully registered by other organizations, individuals or groups that are not Susan G. Komen, nor have any affiliation with them, as far as I could tell. These include “Par for the Cure,” a celebrity golf classic that raises money for breast cancer, and “Ovations for the Cure,” which raises money for ovarian cancer. Well, that’s a relief. There are also trademarks for “Furniture for the Cure,” “Critters for the Cure,” “Polo for the Cure,” and “Coffee for the Cure,” which, thank goodness, also have no connection to Komen. Sadly, Komen has scooped up “Pie for the Cure,” but, well, you can’t have everything. I don’t think anyone so far has trademarked “Cupcakes for the Cure,” so there’s still something I can have with my Coffee for the Cure that won’t bring me a legal letter from Komen for trademark infringement.
Does all this seem, well, silly to you? Me, too, as well as disturbing. And one of the most disturbing things about it is what resides at the heart of Komen’s activity. As Gayle Sulik succinctly put it, “What is really at stake here? It’s about money.” Gobs of money. As well as hubris. According to Komen’s audited financial statement for 2009, their total donations for 2009, listed as “unrestricted assets,” totalled $268,676,237. Of this, they spent $66,643,690 on administrative and fundraising costs, provided $70,146,688 to research, $135,529,669 for public health education, and $61,982,913 for health screening and treatment. This left them at the end of 2009, with net unrestricted assets of $51,827,177 and about another $70,500,000 in temporarily or permanently restricted assets, for a grand total of $129,708,026 in assets after expenses.
So, does it really matter if some contributor who forgot her reading glasses writes a check for $50 to some other charitable organization who has the nerve to raise money for lung cancer by flying “Kites for the Cure?” I think not.
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