Court Realizes That Criticizing A Trademark Is Not Trademark Infringement

from the phew dept

For quite some time now, there’s been a push to extend the meaning and purpose of trademark law to make it more like copyright or patent law — granting the holder of the mark much more control over its usage. Of course, trademark law really isn’t even about “intellectual property.” The purpose of trademark law is much more a consumer protection law — avoiding a situation where someone is selling something while claiming it’s actually something else (or endorsed by someone else). In other words, it’s to protect consumers from being misled. In lumping it in with copyright and patents, though, many have started to assume that it really is like those things, granting owners much more control over their trademark than was ever intended. Unfortunately, there have even been times when the courts have agreed.

In a recent example of just how bizarre this has become, there was apparently a dispute over the trademark of the word “Freecycle” that’s been used by groups who promote reusing stuff that would otherwise be thrown out. There was an attempt to trademark the term, but not everyone was happy about it. One guy put up a website protesting the idea to trademark the term, and he got sued for trademark violations in using the mark in his criticism. Clearly, that’s way beyond the consumer protection purposes of trademark — but a district court actually agreed with the trademark holders, saying that the guy violated trademark law in “disparaging” the trademark. Luckily, the 6th Circuit appeals court has now overturned the ruling, noting that there is little to no chance of confusion here over the mark. More importantly, the court pointed out that there is no such law against “disparaging” a trademark. That’s a good thing, too, or pretty much all criticism would be outlawed.

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Companies: freecycle

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Comments on “Court Realizes That Criticizing A Trademark Is Not Trademark Infringement”

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Peter Rock (user link) says:

Of course, trademark law really isn’t even about “intellectual property.” The purpose of trademark law is much more a consumer protection law

Yes. And according to the US constitution, copyright and patent law exist to benefit the public, not “protect” the authors and inventors. Unfortunately, the term “intellectual property” not only confusingly mashes these disparate laws together, but contains an inherent bias (“property”) that disfavors the public interest.

Crosbie Fitch (profile) says:

The term is fine, but it has been abused

Copyright and patent exist to benefit the merchant. These monopolistic privileges have been excused on the pretext that by benefitting the merchant they may benefit the public.

I strongly doubt that suspending the public’s liberty in exchange for the commercially lucrative reward of a monopoly is actually good value for money.

Intellectual property as a term is perfectly wholesome, but then property has always been wholesome. The trouble is, those in possession of a monopoly have tried to pretend it’s actually a property (because ‘monopoly’ has a bad reputation for very good reasons).

All authors own their intellectual works as intellectual property until they sell them. After that point, their monopolies kick in and allow them to pretend the property they’ve sold is still theirs.

Check out Against Monopoly for further reading.

Peter Rock (user link) says:

Crosbie Fitch says:

“Copyright and patent exist to benefit the merchant.”

According to the US constitution, that is false. They exist to benefit the public. The merchant is (justifiably or not) argued to be the means to the end, not the end. In fact, I find the argument for “exclusive” rights (see Art.1, Sec.8, Cl.8) as a means to the end unsound. But that’s a different discussion. The fact still remains that the purpose of the law is to benefit the public and it is argued that by securing exclusive rights we will achieve that goal. Be careful not to mix the means with the end.

“Intellectual property as a term is perfectly wholesome”

I disagree for the simple reason that the result of intellectual work is fundamentally different in nature than the result of the manipulation of physical elements. To even approach the ownership of the output of intellectual labor in the same way as traditional property (which has a much longer history) is simply asking for confusion. And with confusion will come bad policies and laws. Further, the term “intellectual property” has no meaning when we wish to discuss law and policy. We can discuss copyright law. We can discuss patent law or trade secret law. But we can’t discuss any policy on “intellectual property”. If I have an opinion on “intellectual property” then I am confused and babbling like an idiot or secretively cunning and manipulative (i.e. I’m trying to purposely mislead others). So what is the point of the term? It can only lead to confusion.

Peter Rock (user link) says:

Re: Re:

I should add that literally, the purpose (according to the constitution) is to promote progress in the arts and sciences. But I draw the conclusion that progression in these areas must be public in order to reasonably call it “progression”. If a small group of scientists sit in the basement keeping their invention/discovery to themselves, then surely that can’t be called “progression”.

Cmdr Oberon says:

What about the incompetence of the judge?

Why no comments about the utter incompetence of the original judge who made a ruling not based on law?

Perhaps we need to re-evaluate judges yearly, or have them become specialized like doctors. If sitting judges can make such incredibly stupid mistakes, we’re not in a good position for the future.

Thank your favorite diety, however, for the appeal process.

barrenwaste (profile) says:

Well, sad to say, it’s just what I have come to expect from our judicial system. America, land of the free…ly prosecuted. Don’t like your neihbors hair color? Sue her. Dude at the convience store make a comment about excrement when he spilled the coffee? Sue him! Put your shoes on the wrong feet this morning? Sue your parents! They were obviously to incompetent to teach you correctly when you were a child…..

I’m probably going to get sued now for being a cynic or something. Oh well, government already took everything I haven’t spent on food, and if they can get my car to start without gas in it and with a thrown rod, then they can sue me for that.

J Walker (profile) says:


Unfortunately we have become a nation where obsfucation rules the day. Any politician worth his salt is an artist in obsfucation. (We need to get the Fair Tax act passed so that they can jerk us around, out of public view, less in the future.)

Businesses are bad. Big businesses are even worse. Look at Microsoft and the Linux companies that were scared shitless. No matter what Microsoft wants you to believe. No matter what laws are passed. It is never, ever, and never will be the case that computer software can be written that can not be written a different way to perform the same function.

Now, if you were an idiot you might just get ahold of Microsoft code and copy it verbatim. But, NO, these Linux companies did no such thing. They were just frightened because some government idiots in the copyright office granted a meaningless copyright, or even software patents (an even more idiotic concept), to Microsoft. And, Microsoft (laughing all the way to the legal bank) just told the Linux folks, we have more money than you – sign on the bottom line or we’ll tie you up for years in court.

They caved in. Over time this will tend to pervert Linux since those Linux vendors will bend over in the future, once again, and take whatever Microsoft is pumping out to enhance their lives – no matter what little devils are produced.

Now, I would buy Microsoft software before I would buy software from those Linux idiots. There are still a few Linux companies without Microsoft deals – I would still use their products and services.

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