It's The Misuse Of Trademarks That's A Problem…
from the not-the-idea-itself dept
While lots of lawyers like to dump trademark law into the same category as patents and copyright as “intellectual property,” it’s somewhat misleading. They come from entirely separate parts of the law and the purpose of trademark is entirely different than patents or copyright. Patents and copyright is to create incentives to create. Trademark is designed as consumer protection. Lumping them together, unfortunately, has made companies look to treat trademark law more like patents and copyright, and that’s been a problem. Unfortunately, over the past few decades, this has resulted in an extension of trademark law beyond its original intentions (specifically the whole concept of “dilution” which is a relatively recent addition to trademark law).
Of course, it’s also true on the flipside, that criticism of trademark is coming from the same folks who criticize copyright and patent law. The latest, as sent in by many of you, is an interesting piece in PC World suggesting that the open source community should be just as angry about trademark law as they are about patents and copyrights. I’m not sure that’s true. While I do agree they should be angry about the misuse of trademark law, and any attempt to make it more like copyright or patents, the fundamental nature of trademark law (to avoid consumer confusion and potential harm from that confusion) still makes sense. The problem is when people falsely believe that trademark law allows you total exclusion, rather than only in cases likely to cause confusion. So, let’s absolutely fight against the abuse of trademark law… but it’s not necessary to throw out its initial intended purpose.
Filed Under: abuse, business models, open source, trademark
Comments on “It's The Misuse Of Trademarks That's A Problem…”
tm
I enforce my trademarks, but then again. I understand what is bad and good. Fairuse and all. I am pretty open to use. But if its something that makes me look bad, cause of mis-use, i am more likely to try to work with it.
Re: tm
Fair use has nothing to do with trademark law. Your comment perfectly reflects Mike’s point that people are confusing the intended purposes between trademark and copyright.
Re: Re: tm
The law recognizes fair use in trademark law AND copyright law. The two kinds of fair use are not measured the same but they both exist.
Also, its not fully accurate to say that trademark law exists soley to prevent consumer confusion. Trademark law also exists to protect the property right that attaches when the owner of a trade symbol uses that symbol over time and consumers associate that symbol with one firm.
This often puts trademark law at war with itself. All too often, under the guise of protecting consumers, what brand owners really want is to limit consumer choice by keeping a competitor out of the marketplace. An even more egregious form of trademark abuse takes place when brand owners threaten someone who criticizes their product or service by claiming that such criticism infringes their trademark.
Do we need brands? Undoubtedly. Do some brand owners seek to REDUCE consumer choice and thereby force consumers to overpay for products? Undoubtedly.
The Swedish Pirate Party says the same thing as you:
“Trademarks is primarily a consumer protection. We think that this system principally works well today and don’t propose any changes.”
Since trademarks are there for the sake of consumer protection one should never penalize consumers for buying counterfeit products. Only sellers should be affected.
Misleading again...
The purpose of trademark is more than consumer protection. The Supreme Court said it best…
“[T]rademark law, by preventing others from copying a source-identifying mark, ‘reduce[s] the customer’s cost’s of shopping and making purchasing decisions,’ for it quickly and easily assures a potential customer that the this item — the item with this mark — is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past. At the same time, the law helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product.” Qualitex Co. v. Jacobson Products Co, U.S. Supreme Court (1995).
Re: Interesting, but ...
All this talk of the purpose of trademarks being consumer protection sounds good, but I think the reality isn’t so good.
Consider the (many) cases when a bankrupt company sells its trademarks to another company, and those of a company being bought by another. In none of those cases does the continuing use of the old trademark give the consumer any assurance that the goods bearing that trademark have the same quality, customer service, etc. as they did before the sale.
Perhaps trademarks should not be allowed to be sold and not be allowed to continue in use after a company is taken over. That would give the consumer at least a little more assurance that he is buying a product that was the same as he is used to getting under that trademark.
Of course, that doesn’t protect against a company suddenly cutting quality without a sale or takeover being involved, but it might help make trademarks mean at least a bit more than they mean today.
Of course, I have no hope that rules such as this would ever be put in place. That would be a litle too much consumer protection.
Re: Re: Interesting, but ...
You are absolutely correct, which is why trademarks are grouped with intellectual property. Trademarks are bought and sold, just like property. Trademarks are assigned value, just like property. If it walks like a duck and quacks like a duck…
More on trademark history. Jefferson recommended trademark legislations be enacted because sailmakers were requesting such legislation to protect their name, not because of consumer protection.
Virtually every source regarding trademarks state that the common law purpose of trademarks, the law prior to the creation of trademark law, was to prevent unfair competition, again nothing to do with consumer confusion.
Many of the same references do point out that an additional benefit of a system of trademark ownership and the prevention of unfair competition is that it enhances the public policy benefit of reducing consumer confusion.
Trademark abuse
Well done!
Pretty much
Yeah my only other problem with trademarks is the tendency to call them intellectual property.
As vehemently opposed as I am to the idea that concepts, forms and ideas can somehow be property, it’s a whole other thing to trick customers (either intentionally or accidentally) into thinking you’re someone else so that you can pinch off of their reputation. It hurts the consumer and the producers.
In this case, the basic idea of the law makes sense.
Re: Pretty much
Of course, the basic idea of the law was the prevention of unfair competition. The reduction of customer confusion was an added benefit which was tacked on as an afterthought.