Does Oprah “own” her own “power”? Believe it or not, that’s the question in a closely watched intellectual-property fight recently revived by a federal appeals court in New York and headed for a very expensive trial. Apart from its celebrity sparkle, the case illustrates why non-lawyers frequently find IP disputes so baffling.
On May 31, the U.S. Court of Appeals for the Second Circuit revived a suit accusing broadcast and publishing mogul Oprah Winfrey of infringing a trademark on the term “Own Your Power.” The case began in 2011, when a New Jersey motivational radio host named Simone Kelly-Brown sued Oprah, her company, Harpo Productions, and her magazine publisher, Hearst, claiming they violated Kelly-Brown’s trademark for “Own Your Power.” Oprah and her corporate partners responded that her publication of the phrase—on a magazine cover and in conjunction with public events—was permissible under a doctrine called fair use.
The fight boils down to whether Oprah employed the disputed phrase in good faith and merely for its descriptive … er, power, or whether she tried to confuse consumers who would associate the phrase with Kelly-Brown’s business. A federal trial judge earlier had ruled for Oprah, dismissing the suit. The appellate court reversed that ruling and said Kelly-Brown deserved an opportunity to prove that Oprah stole her intellectual property. “The defendants [Oprah and affiliates] have not adequately established a fair-use defense,” U.S. Circuit Judge Chester Straub wrote in his opinion. “Kelly-Brown has plausibly alleged that Oprah was attempting to build a new segment of her media empire around the theme or catchphrase ‘Own Your Power.’”
Several aspects of the litigation seem strange:
• Kelly-Brown’s attorney celebrated the case as “kind of a David-versus-Goliath situation.” Perhaps more precisely, Kelly-Brown appears to be a Mini-Me version of Oprah. Does it make any sense that one of the most successful talk-show hosts of all time, and surely the titan of the self-affirmation industry, would try to expand her commercial reach by hornswoggling consumers into thinking they were getting Kelly-Brown’s “Own Your Power” in the pages of O, The Oprah Magazine or in the hotel ballroom of an Oprah-branded conference? No, it does not make any sense.
• On the other hand, since Kelly-Brown did follow the rules and register her trademark back in 2008, before Oprah began to blare “Own Your Power” as a slogan, couldn’t Goliath cut David a break and use some other insipid phrase to advertise her shtick? Oprah certainly could make herself heard without that precise arrangement of three words.
• Finally, shouldn’t both ladies heed the substance of the admonition they so fiercely covet? By unleashing the lawyers, aren’t they surrendering their own power? They’ve turned themselves over to the meter-running attorneys and the vagaries of a legal system that so often undermines common sense and robs people of their more elevated instincts to compromise like adults.