Are Our Products Safe?
In a time of universal deceit, telling the truth becomes a revolutionary act. – George Orwell
The Danish/German film company, Rialto Film, was founded by Constantin Philpsen in 1897. Little is known about Rialto’s productions prior to 1950. What is certain, however, is that Rialto became an international success with the release of the Edgar Wallace and Karl May series of films in the 1960’s.
Let us take a closer look at the front and the back cover. Notice that they clearly show Rialto Film, Tobis, Universum Film and UFA, among other company names associated with the production and distribution of the motion picture.
According to the Lanham Act, the term “trademark” includes any word, name, symbol, or device, or any combination thereof –
(1) used by a person, or
(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.
Can anyone simply attach a sticker to any product and claim to be the source?
Does a trademark sticker on someone else’s product give the registrant the right to sue for trademark infringement?
Is any “Winnetou” product produced by others safe?
One has to wonder!
Check out the trademark register at the USPTO type in the word “Winnetou” or “Shatterhand” and see the submissions of those who seek to own Karl May’s famous characters.
The above images are sourced from Amazon and the United States Trademark Office.
The original works of Karl May entered the public domain in 1963, fifty years after the death of their creator. But the freedom that this status should have granted to the works of Karl May was short-lived.
One only needs to consult the German Trademark Register and search for the term “Winnetou” to see how a famous name has been and still is exploited by those who have not yet understood the message that Karl May embedded in his “Traveler’s Tales”.
Winnetou, the fictional noble Indian Chief, who was born behind the dark prison walls during Karl May’s captivity was to be the focus of a quest for the lost human soul. Now, however, this fictional character and his fictional blood brother ‘Old Shatterhand’ are the objects of the very greed and avarice that Karl May spoke against in his many novels. Karl May wrote in his autobiography
I want to tell parables and fables, with the truth being hidden deeply inside, the truth which by other means cannot be perceived, yet. I want to derive light from the darkness of my prison life. I want to convert the punishment, which has come upon me, into freedom for others …. I want my readers to stop regarding life as a merely material existence. This view is a prison for them, beyond the walls of which they are unable to see, to behold the sunny, free, wide land.
And yet, greed, avarice, legal wrangling and the drive to bind a fictional noble Indian Chief and his companion to one person and to one company continues unabated. Karl May wrote in his autobiography
For whom were my books written? Quite naturally for the people, for all the people, …
What better homage can we show for Karl May’s work than to cease all this squabbling and make his books available to all the people of this world without wanting to own the names of the famous characters he created.
Have we learned nothing from Karl May’s writings?
Karl May admonished his readers in his autobiography
Since my books contain nothing but parables and fables, it goes without saying that the reader is supposed to think about them thoroughly and thus my books only belong in the hands of people, who are not only able to think, but also willing to bestow thought upon them.
Apparently this warning went unheeded.
Why do we oppose the trademark?
We do so because, had the truth been known, the names of Karl May’s famous fictional characters should have been rejected by the trademark office upon application.
The German courts have repeatedly held that famous characters from actual or literary history cannot be registered for goods (such as books or films) that may directly deal with classic characters.
Similarly, the Lanham Act states that, a mark must be able to identify and distinguish goods or services from those goods or services provided by others. (See 15 U.S.C. § 1127) and since fictional characters are often simultaneously associated with a number of different sources, including authors, producers, sponsors and even themselves, a fictional character’s name is unable to identify a single source and is therefore unable to serve the goals of trademark law.
We also believe that Karl May’s intent is better served if his fictional characters can be explored and not exploited. Karl May wrote in his autobiography
In my entire work, not including the humorous short stories and village-tales from the Ore Mountains, there is not a single character that is fully developed and perfected by me, not even Winnetou and Hajji Halef Omar about whom I have written more than any others. After all, I am not finished with my own development yet. I am still changing. Everything within me is still forging ahead and so are my characters and all of my topics.
His fictional characters must therefore remain unfettered so that they can freely develop and grow within each of us.
As Karl May stated
The welfare of mankind demands that there shall be peace between the two, no more exploitation and bloodshed. I was resolved to constantly emphasize this in my books and to kindle in my readers the love for the red race and for the inhabitants of the Orient, which we owe them as fellow human beings.
Let us hope that this message will soon be understood by all.