No doubt. But what makes a trademark able to be valid is the consistent use of a symbol, word, or phrase in relation to a particular proprietary product. If Cecil or Ed wanted to, they could publish, in purple, a weekly selection of memorable and witty lines and call it Grape Nuts. They could not, however, produce a breakfast cereal or anything close enough to it (e.g. trail mix) as to be reasonably confused with the trademarked Post product. If DuPont were to produce an airplane cement for use by heterosexuals only, they could call it Staight Dope without infringing on the Reader’s trademark. But they would be ill advised to produce something reasonably resembling a newspaper column bearing that moniker.
That a phrase has already been in use does not debar it from being trademarked; the sole bar in that manner is that it not be in common use to describe generically what it is desired that it become the proprietary name for one product of. If a word moves into common use as the generic term for the product or process, the company holding the trademark can lose it. That’s why you have toddlers in ads saying “Mommy, I hurted myself. Can I please have a Band-Aid brand adhesive bandage?” or a boss telling his secretary to “make a xerographic copy of something on our Xerox brand xerographic copier.” But if you were to bring out a line of perfumes and call it “Smells Like Teen Spirit,” there’s very little Nirvana’s lawyers can do about it – they hold the trademark/copyright for the phrase as a song title, not a brand of perfume.
Correct. The only reason I mentioned E.E. Smith is because I got the impression that some people might not be clear on whether or not the phrase actually was around before the column. I mean, the column has been since 1973. 1973, man! It’s ancient!
