Surprisingly, there may be more than one person trying to make sure you Own Your Power. Forgetting for the moment what those words may mean or how some may go about owning their power, the Second Circuit has revived the debate over who owns the right to exploit those words–for the time being.

Three years ago, Simone Kelly-Brown sued Oprah for plastering “Own Your Power” on the cover of The Oprah Magazine and subsequently hosting a corporate event with the same title. Before Oprah published that magazine or held that event, Kelly-Brown had trademarked the phrase and created a website and suite of writings centered on the idea. So, upon seeing Oprah’s use of the phrase, Kelly-Brown went to the courts.

The suit centered around Kelly-Brown’s trademark on the phrase and her ability to stop others from using the same. Kelly-Brown took the issue to the federal courts, and last year the court dismissed the case, finding that no one could confuse the source of the phrase between Oprah and Kelly-Brown. Moreover, the court further found that Oprah had a right to fair use of the phrase in labeling her magazine.

Kelly-Brown, perhaps taking hold of her Own Power, would not be denied. She appealed, and on May 31, 2013, Judge Chester Straub of the Second Circuit gave her a partial victory. Judge Straub vacated the District Court’s ruling regarding trademark infringement reviving the issue of whether Oprah overstepped her reach. In terms of legal arguments, the issue centers around the Lanham Act, which was enacted decades ago in an effort to create “a national system of trademark registration.”

The findings of the court’s lengthy opinion are a bit too numerous to outline here, but in short, the court found (PDF) Oprah’s arguments unpersuasive because she had confused “use of a trademark commerce and use as a mark.”

Ultimately, the Second Circuit remanded the case for further proceedings. So, we’ll have to wait just a bit longer to find out who Owns Your Power.

–Jonathan Hoffmann

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One Response to Does Oprah “Own Your Power?”

  1. Stewart Bohan says:

    I’m pretty sure Oprah stepped in it with this one. I have very little doubt that she (or someone at HARPO, at least) had a good idea that Kelly-Brown existed. The phrase was clearly planned to be used in all sorts of manners, as reflected by the magazine, the motivational events, etc. As such, it would have been vital to run a trademark search on the phrase before using it in such various ways. Oprah has been around long enough to know how the business works. She likely found the mark, decided that a small company like Kelly-Brown’s wouldn’t try to go after THE OPRAH WINFREY, and went forward anyways despite the risk. Often such a decision will work out with no complications, or the parties can reach a co-existence agreement before things get hairy. But sometimes, as Oprah will likely find out on remand, its best to work things out on the front end and not to underestimate the little guy–especially a little guy who knows how to “own her power.”