Morons In A Hurry Rewrite Trademark Law The Wrong Way
from the can't-trust-those-morons dept
Just this morning, we were talking about how it was time to revisit trademark law, and perhaps emphasize the importance of the “moron in a hurry” test that says if a moron in a hurry won’t confuse be confused by the use of the trademark, it’s not a violation. Unfortunately, it looks like Congress is going in the other direction. Back in April, we wrote about a bill that (in an extremely sneaky way) limited the exceptions to trademark law. There was a lot of confusion over this, because a straight read of the bill made it sound like it increased those exceptions, but many claim that when put into the full context of existing legislation, it actually reduced them greatly (in fact, some believe it was a typo that caused this). So, just as this debate over trademark law is heating up, that same bill is apparently in front of Congress again. Even beyond the question of the exceptions, this is a dangerous bill. The EFF is noting that it will likely only add to the amount of trademark infringement claims and lawsuits, since it seems to remove some defenses and also doesn’t require the trademark owner to prove that it has been harmed. So, while we encourage the use of the moron in a hurry test for trademark law, that doesn’t mean they should be the ones writing the laws. The important thing is for people to take a step back and understand what the purpose of trademark law is: it’s to prevent customer confusion, where someone thinks a product is associated with a different company. If it’s not doing that, then it shouldn’t be trademark infringement. This particular bill does exactly the opposite, allowing companies to sue for infringement “regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.”
Comments on “Morons In A Hurry Rewrite Trademark Law The Wrong Way”
wow, and i didn’t think American politicians could get any dumber.
why don’t they just put the EFF in charge of releasing the truth about what’s on the paperwork in front of these congress morons, since they obviously have no fucking clue about anything to do with technology. they just get money from big corporations to do the bidding of big corporations.
Politicians don’t serve the people, they bow to the Corporations. America, land of hypocrisy.
Proving Harm
Personally, I don’t think that a Plaintiff should have to prove actual harm to get an injunction against continuing Trademark infringement. To get damages, yes they should have to prove real harm.
Proving real harm can be difficult. If someone opens a hamburger restaurant called McDonalds, complete with Golden Arches and selling Big Macs, McDonalds might not be able to prove that it has cost them a single sale and yet there is not the slightest doubt in my mind that they should be able to get an injunction.
Re: Proving Harm
Proving real harm can be difficult. If someone opens a hamburger restaurant called McDonalds, complete with Golden Arches and selling Big Macs, McDonalds might not be able to prove that it has cost them a single sale and yet there is not the slightest doubt in my mind that they should be able to get an injunction.
Hmm. I think consumer confusion qualifies as harm, and this would clearly be consumer confusion… The harm is in the likelihood that a customer believes this fake McDs is the real one. If they have a bad experience, they are likely to attribute it back to the larger company, which certainly is harmful.
If this bill is not fixed, it will lead to more bureaucratic confusion. Bills like this stifle the efficiency of the political system by not clearly expressing the initial intent behind the making of the bill.
If this bill is not fixed, it will lead to more bureaucratic confusion. Bills like this stifle the efficiency of the political system by not clearly expressing the initial intent behind the making of the bill.
If this bill is not fixed, it will lead to more bureaucratic confusion. Bills like this stifle the efficiency of the political system by not clearly expressing the initial intent behind the making of the bill.
It's all about profit...
This seams to be the only way a company can make a profit. And that’s by sueing someone else for steppen on their trademark. I say dump them all and everyone start over. This time let the people decide as our elected officials dont have a clue.
Re: It's all about profit...
Actually, it’s very difficult to get any money in a trademark infringement case. The typical remedy is just an injunction – stopping the bad guy from doing what they’ve been doing. This may ultimately make the complaining company more profitable, maybe, but it’s not like the company gets handed a big bag of cash if they win.
Keep it simple
Congress needs to set in an extra session and drop these laws that no longer apply. Like Indiana supposed to give a gold dollar, a horse and a weeks dry reations when you get out of county jail. There woiuld be less confusion if these laws had less loopholes. Half our lawyers and politicians would be out of a job then I guess, and megacorps would need to earn an actual honest buck, so the idea is likely unconstitutional by now.
Proving Harm
Hmm. I think consumer confusion qualifies as harm, and this would clearly be consumer confusion… The harm is in the likelihood that a customer believes this fake McDs is the real one. If they have a bad experience, they are likely to attribute it back to the larger company, which certainly is harmful.
The problem, Mike, is when McDonalds tries to prove harm was done. We would all agree that this fake McDs is, in and of itself, harmful to the company, but how does one prove that?
Defence Lawyer – Show me numbers that have gone down since this McDs has opened!
McDs Lawyer – Well… we don’t have a McDs in that area so we don’t know that numbers have specifically gone down. But we have received complaints about a McDs and we think that it’s about the one you’re representing!
You can see how this might be hard to prove. I think Joe Smith has an excelent point.
Re: Proving Harm
The problem, Mike, is when McDonalds tries to prove harm was done. We would all agree that this fake McDs is, in and of itself, harmful to the company, but how does one prove that?
Well if I go to the fake McDonalds and get food poisoning i would sue the real McDonalds since I don’t know it was fake. A lawsuit over food poisoning is bad press for anyone in the food service industry. No matter the outcome said lawsuit would severely damage any plans to place a McDonalds in that area. Plus the money that McDonalds would spend on setting the record straight. Yeah they could sue the impostors but how much money do you think McDonalds could get? You can’t take money that someone doesn’t have. And just imagine if the food poisoning actually killed someone.
Well if I go to the fake McDonalds and get food poisoning i would sue the real McDonalds since I don’t know it was fake
That’s assuming you actually got food poisoning. If none of that ever happened it would still seem obvious that a trademark infringement had happened. Both Mike and Sanguine Dream give examples based on something specific happening. If the fake McDs runs a decent outfit it would be hard to prove harm done and yet no reasonable person would say that it should be legal to do so as it would be unfairly profiting off the work of the real McDs.
Actually, the real danger here is McDonalds attempting to close down a high fashion clothing store named McDonalds by claiming the name infringes on their trademark. Restaurant vs. Restaurant is in McDonalds favor. The problem that is being deepened here is when companies go after “Trademark” violations that obviously don’t hurt the company in the least. Like Monster Cables going after any company that has monster in it’s name. Ex. http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/11/08/BUG1J9N3C61.DTL&type=business
Idea
It might be an idea to say that the injunction can be placed against anyone who would fail the moron in a hurry test (from the UK law defintion), and that damages can only be sought under trademark law if actual damage is done AND THE TRADEMARK IS INFINGED, inwhich case the injunction would also be automatically applied. if the trademark s not infringed, tehn the trademark owner should pay costs to the defendant.