California Looking To Pervert The Meaning Of Trademark Law
from the tragic dept
We’ve always tried to highlight how trademark law is quite different than copyright and patents, in such a way that it shouldn’t even be considered under the same “intellectual property” umbrella. Both copyright and patents were designed as limited monopolies to provide incentives to creators of content or ideas. That is, it’s a “necessary evil” for the sake of promoting content and ideas. Trademark law, on the other hand, is supposed to be about consumer protection. The idea is that Bob can’t pretend that Bob’s Cola is really Coca-Cola and mislead you into buying a different product than the one you thought you were buying. In other words, it’s not about the incentives for the ownership of rights — but about making sure consumers aren’t misled. Unfortunately, ever since people started incorrectly lumping trademark law into the “intellectual property” bucket with copyrights and patents, plenty of people have tried to change the meaning and purpose of trademark law to make it more like those others (with similarly damaging results). One of the key ways to do this is to focus not on the consumer confusion aspect, but on claiming that trademark law is really about preventing “dilution” of the trademark. This is twisting the purpose of trademark law, but it’s increasingly becoming an accepted aspect of trademark law — though, the stronger it becomes the worse off we’ll be.
In fact, it appears that legislators in California have been convinced that trademark needs to be a lot more like copyrights, and have put forth a bill that would greatly expand the power of trademark law along these lines. Even worse, it would remove many of the fair use protections that people get, that are supposed to protect intellectual property law from being abused. The law would also add liabilities to sites like eBay if trademark infringing goods are sold on the site — even though it’s impossible for eBay to recognize what’s infringing and what isn’t. Basically, this is a law (at the state level) that makes trademark law much worse than the worst points of copyright law. Considering just how badly copyright law is already abused, just imagine how badly this trademark law would be abused if passed?