Trademark Law Spinning Out Of Control

from the getting-worse-and-worse dept

Trademark law is unlike copyrights and patents in a very important way. Copyrights and patents are designed to give specific ownership over an idea or work to those that created it. Trademark, on the other hand, is not at all about ownership — which is why it probably shouldn’t be included under the “intellectual property” umbrella. It’s really about consumer protection. You don’t want consumers to be confused into buying a product believing it’s one thing (say, Coca-Cola) when it’s really something else (say, Bob’s Cola). Unfortunately, with the growing intellectual property obsession among lawyers in this country, there’s been an effort underway to stretch the intended meaning of trademark law away from just consumer protection into outright ownership. The latest is that lawyers are encouraging clients to trademark all sorts of phrases to prevent their general use without a license — which seems like a clear First Amendment violation. One example given is a phrase that a former boyfriend used to say to Anna Nicole Smith. Apparently he (and his lawyers) are hoping that the trademark means that anyone who uses the phrase in “movies, books, TV programs, Internet programs and stage plays” will now have to pay up first. This is not at all what trademark law was designed for, and yet when we’re taught that you can “own” ideas and concepts, it’s no surprise to see people try to take ownership of simple words and phrases as well.

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Comments on “Trademark Law Spinning Out Of Control”

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ConceptJunkie (profile) says:

Lawyers will naturally...

try to get away with anything they can. It’s human nature.

But given the fact that the USPTO has decided to become a rubberstamper for patents and the courts will basically give any nut a hearing and a good chance of having been found to be owed money by someone, it’s no surprise that there’s a huge industry around these concepts.

Why do work when you can litigate your way to financial success. Thus continues the decline of the U.S.

Huh? says:

Trademark law inaccuracies out of control?

I think you should point out that you’re not that versed in trademark law.

For one, trademark law does protect ownership. It protects the ownership over the mark and all that the mark signifies, including the quality of the product. This does more than protect consumers but also the owner of the brand by making sure knockoffs of lesser quality aren’t branded with their own trademark and so lessen their sales. Who wants to buy “Bob’s Cola?”

You also fail to point out that it’s going to be virtually impossible for Anna Nicole’s boyfriend to trademark that phrase because you can’t just trademark whatever comes to mind. You actually have to be selling some kind of product or service in connection to the mark.

Now, I’m all for freedom of speech, but trademark law does serve a purpose and there are ways of stopping people from just hijacking what belongs in the public domain.

Just a bit of information for you and everyone reading this, before they too get outraged without getting some more information on the subject.

sambo (profile) says:

World gone crazy

Reminds me of a recent issues here in Australia where the UK confectionary giant Cadbury Scweppes tried to trademark the colour purple.

Basically their flagship chocolate bar comes in purple wrapper so they made moves to prevent any other chocolate or confection manufacturer using any purple on their wrappers, regardless of how long the competitors products had been on the market

A bit like the RIAA they sent out a stack of cease & desist letters to other companies (one being Nestle) claiming that they had the sole rights to the colour purple when in reality no such trademark had actually been granted.

Again like the RIAA they just assumed that as they were so big that nobody would challenge the legality of their claim.

Unlucky for them a few companies did. The courts here in OZ quite sensibly struck down Cadbury’s claim that they could trademark something as general as a colour.

End result they allowed them to trademark 2 shades only.
The colour purple is safe for now.

Given how things seem to be going with the judicial system in the U.S. I wonder if the decision would have been the same….

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