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Hands Off My Insipid Self-Affirmation, Oprah

Oprah Winfrey receives an honorary Doctor of Laws degree from Harvard University during commencement ceremonies in Cambridge, Mass., on May 30

Photograph by Elise Amendola/AP Photo

Oprah Winfrey receives an honorary Doctor of Laws degree from Harvard University during commencement ceremonies in Cambridge, Mass., on May 30

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.

Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.

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