Late Friday, the story broke that Apple had sent a trademark cease and desist letter
to a site called PodcastReady
, claiming trademark violations. The podcast community, not surprisingly, spent the weekend screaming in anger at this move. Of course, given other recent cease and desist letters from Apple
for products that had "pod" in the name, this isn't that surprising. We've discussed in the past why it's unfortunate that people think of trademark law as "intellectual property law." It's really quite different than either patents or copyright -- which grant a more complete ownership over the idea or content. Instead, trademark law should be viewed much more as a consumer protection law
. The purpose is to avoid consumer confusion -- where some ripoff company tries to sell you a fake "iPod." So, if there's no customer confusion, there should be no trademark problem. In fact, it was Apple in a recent case that helped highlight a great legal "test" for applying trademark law: the moron in a hurry test
. If a moron in a hurry wouldn't be confused by the use, then there's no trademark violation. In this case, it would seem that Podcast Ready should be in the clear using that test.
However, there's a second element of trademark law that causes problems. Trademark law requires that the holder of the mark actively polices its use. That is, if you don't try to stop others who are using the mark from using it, you can lose the trademark. There are some reasons for this, but perhaps it doesn't really make sense any more. Because no one wants to lose their mark, it encourages lawyers to send a cease-and-desist in even the most borderline of cases. The "you must send a cease and desist as soon as possible" combined with the "moron in a hurry" test don't really work too well together, and create a ton of waste in the form of unnecessary legal fees. So, perhaps it's time to explore whether or not there's a better way to handle trademark law, focusing on the consumer protection side, but avoiding the over-active policing of trademarks.