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Why so much Ado about the Winnetou Trademark? – An Editorial

November 12th, 2009

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 …

Comments

4 Comments

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  • Victor Epp says on: November 13, 2009 at 8:35 pm

     

    I felt the need to wholeheartedly endorse your editorial regarding the whole Winnetou trademark issue. The time for trademark registration of the names of Winnetou and Old Shatterhand is long past and the manner in which this attempt is being made is an insult of the highest order to their creator. These names are not merely names without meaning. Over time, they have become synonymous with the moral values held by the author, a fact that he himself espoused in his autobiography. You can’t just slice off the piece of pie you want and discard the rest.

    That the perpetrators of this trademark application exclusively worship the golden calf without concern for its far-reaching implications is self-evident. Having just completed the Satan and Iscariot trilogy, I am struck by the similarity of their operations to those of the Meltons in that story. Karl May has described them quite accurately – and that was a hundred years ago. I wonder why they don’t apply to trade mark the names of Thomas, Harry, and Jonathan Melton instead. It would seem more appropriate, although not nearly as savory.

    But that is only the tip of the iceberg. How for example, would the Native American population view this exploitation of the Apache character known all around the world and held up to exemplify the best of human traits? Has anyone even bothered to ask? One would have thought that would be the first thing the Trademark Office would take into account. Are Native Americans nothing more than a trading commodity? They must be, given the lack of due diligence exercised by the bureaucracy. It isn’t even a matter of commercial adventure. It’s a matter of human dignity. Karl May must be spinning in his grave.

    And the most rankling of all is the cavalier way in which the storyteller is relegated to the dustbin. Karl May’s motivation in writing these parables is quite clear and well documented. He was passionate about it. We are now at a place where, through the electronic medium we can reach people around the world to share his stories and teachings just as people did around a campfire in the days when stories were an important way for people to gain wisdom. It would indeed be a sad commentary if all of this were to be sold down the river for thirty pieces of silver.

    The bureaucrats would do well to remember that a good deal of the American constitution is based on the practices of the Six Nation Confederacy. It would be a mistake to tramp on the dignity of its native peoples for fear of tramping on the dignity of the constitution itself. The way I see it is that all parties would be best served if the trademark issue were summarily extinguished, and the matter were pursued in the true spirit of Karl May’s wishes.

  • Melissa says on: November 14, 2009 at 9:46 am

     

    I was reading your article with great interest. I have done some investigating on my own and I have a couple comments. I went on the trademark site and looked up Winnetou. The applicant for this trademark had to file a declaration that the name Winnetou is not used in commerce or there is no other product on the market that would cause confusion. This puzzles me because there are many Winnetou films put out in the 1960’s and I also found a film called “Winnetou’s Return” produced in 1998 and even a stage play in American in 1989. Let’s not forget about the open air theater productions that go on at all the Karl May Festivals around the world, so how could this even pass through the trademark office. Clearly the applicant would have done some research on this and known about these since the categories that were filed for cover plays, television shows, DVD’s, movies etc. But the required declarations were signed, which by the way you can view on the trademark office website, stating there is nothing on the market that can be confused with the trademark. I find it shocking that this even got past the application process. Let’s not forget that it states right on the trademarks website you do not have to file a trademark for a product that is used in commerce so the search must be expanded beyond what is on file in their database, you need to search the entire market to make sure that an application is valid. Needless to say someone was sleeping on the job and just pushed this through. I can’t believe this! It can happen “only in America”.
    Your article makes a good point, if this trademark goes through, every time Winnetou would be used in any of these categories, the applicant would be entitled to a sum of money without doing anything but owning the trademark name. How can the trademark office be so blind and not verify this information? With the internet at our fingertips all you have to do is type in Winnetou and you get pages upon pages of sites that sell movies and DVD’s. Surely it doesn’t take that much effort to dispute these claims.

  • christel says on: November 15, 2009 at 10:16 pm

     

    Very interesting to read all about the real facts at last! So some woman is trying to register the names Winnetou and Old Shatterhand as a Trademark.
    I can’t understand that the Trademark Office is so slack! Don’t they know that these names are in the public domain? Don’t they know how we Germans feel about Karl May?
    Then I also read about this person claiming she is a fan of Karl May on one hand, but works hand in hand with the Karl May Verlag whom we all know to have exploited Karl May for more than a lifetime. But now she wants to claim the Trademark for her own company, “WHY”?
    Would a real fan go so far to used this beloved Author’s Characters for their own benefit? It seems too easy take a famous name, make it your own and profit from the work of others without ever doing any real work! Isn’t that illegal?
    The Trademark Offices should stop these kind of applications right now, or is it also so money hungry that it will take funds without doing any real work?

  • Shane says on: November 20, 2009 at 4:01 pm

     

    As far as I know if a piece of art is over 100 years old it is considered public domain. Art being….Music, Books, Etc

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