Let us consider what would happen if some unscrupulous person managed to trademark the name of ‘God’.
How would you feel if each time you invoked the name of God you would have to pay a royalty to the trademark owner? Could you still address your deity as freely as before? Or would you submit and never utter another prayer?
Luckily the various names of God can not be trademarked because one can not trademark institutions, beliefs or national symbols. At least that is what the Trademark office claims.
In respect of Winnetou, however, the trademark office let it slip through – why? Because unlike in Germany, Winnetou is not well known here and therefore the name is not synonymous with that fabled Apache chief whose character is beyond reproach.
One should remember that the Trademark law is designed to protect consumers and producers alike by ensuring a certain level of quality, and making it easier for customers to know what the source of a product is. Would the name Winnetou then identify the source? The answer is a resounding “NO!” since Winnetou is in the public domain and since such works can be freely copied, modified and otherwise used. By allowing Winnetou to be used as a brand, it would immediately create an unfair monopoly. Registering the concept of Winnetou and using less than honorable tactics to keep others from using that name in their work is also antithetical to the purpose of trademark law in general.
What then would a Winnetou trademark achieve? It would firstly discourage the open discourse that has been nurtured ever since the original works of Karl May entered the public domain in 1963. Thus the failure of the Trademark Office to properly research the name and its standing both here and overseas has caused grave concerns. Especially since the current trademark applicant proudly claims, “We own the rights to the use of the name WINNETOU™ and OLD SHATTERHAND™ in the United States.” A statement that is not only misleading but also false since everyone has the right to use these names as they see fit. This statement further implies ownership of products that are not covered by the trademark application to date. Secondly, the market would be cleared of competitors, ensuring that any mention of Winnetou as well as Old Shatterhand would be stifled. It would thus jeopardize the public domain titles currently available through the Karl May Gesellschaft and the Gutenberg Project. And all translations of the original work would of course suffer the same fate under such a monopoly.
The attitude that such a trademark ownership encourages can be most easily gauged by referring to a legal case in Germany where a book publisher sued an intrepid producer because the producer used the name of Winnetou in the title of a new work. The book publisher, as has been discovered to date, sought to protect their product, which included films, by registering the name Winnetou and then sought to squash the competition despite the public domain status of the original work. But the producer, and a television station drawn into the battle due to demands for royalty payments, won the case and the publisher lost the long held exclusive rights to films, books and periodicals in respect of the name Winnetou.
Bureaucracy, being what it is, has yet to catch up to these developments, which occurred in December of 2002. It should therefore not surprise anyone that a similar situation is now developing in the United States of America. Something that is most clearly demonstrated by a letter that Nemsi Books received from the applicant’s lawyer in which the extinguishing of the Winnetou trademark is claimed to be untrue. A simple perusal of the German Trademark register does however prove that books, periodicals and films are indeed no longer covered by the Winnetou trademark.
That many enterprising publishers and translators around the world have availed themselves of the opportunity to disseminate Karl May’s earliest work to an eager public wanting to read the message that has been hidden for so long can likewise not be disputed.
But in America such a sentiment is clearly of lesser importance. Here, capitalism seems to take precedence. It should thus be of no surprise that exploitation is more important than the simple truth contained in Karl May’s writings – namely that mankind has lost its soul.
For the last century, this very idea has been hidden from the reader because more emphasis has been placed on an exciting Wild West adventure than the deeper meaning embodied in the sad and yet joyous tale of Winnetou.
Karl May wanted to free the people who regarded life as a mere material existence – but it is this very materialism that still binds his parables today. Thus it is no wonder that, for some, there is excitement associated with the idea of a new ‘Wild West’ or ‘Oriental Odyssey’ movie featuring the famous characters of Winnetou, Old Shatterhand, Kara ben Nemsi and Hajji Halef Omar … but to what avail?
How can one make a meaningful movie when one does not have a solid foundation upon which to base such a new creation? It seems that the latest effort desires to circumvent this by creating a new story that was not written by Karl May at all … how then can it be labeled a Karl May story?
Does one do this to the likes of William Shakespeare, Keats, Wordsworth, John Donne, Mark Twain or John Steinbeck? Of course not, for it is truly as John Donne wrote, “Here dead men speak their last, and so do I”
It is well known that one has to take some liberties when writing a film script since some things written in a book can never be satisfactorily expressed in a predominantly visual medium. But that is no excuse for dismissing Karl May’s work whilst keeping, and even branding, the hero he created. Doing this immediately closes the door to others and therefore to perhaps better and more accurate depictions of the original tale.
Why then must we free Winnetou? For the simple reason that Winnetou, and all the characters that Karl May invented, belong to each and everyone of us. They are yours to use, just as the stories are. And whilst a publisher may charge to provide you with a book in another language, the price is not oppressive … at least not yet …
Once a monopoly is established however, a twenty-dollar book can easily become an eighty-dollar book. A signed picture of a celluloid hero, a coffee mug emblazoned with the Winnetou trademark, a pair of bison leather moccasins a la Canada or any of the other items that are usually sold along with the movie experience are all aimed to draw money from your pockets and leave you empty.
And what did you get from that momentary experience? Did it open your heart to the plight of mankind? Were you carried away with the words that conjured up images that only you can see? Or were you presented with a fait accompli, a pre-chewed imagery of Cowboys and Indians tainted with love and lust, avarice and envy?
And never once would the thought have crossed your mind that Karl May might not have written about the Wild West at all. What if the whole thing was supposed to be a parable that describes the twists and turns in the psyche of mankind?
But, if this trademark is finally registered, Karl May’s true message will again disappear behind the doors of a new master, to be locked away for perhaps another hundred years …