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.