Legal Issues

by Mike Masnick

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?

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Ben Robinson, Jun 14th, 2007 @ 2:39am

    Does this not also undermine one of the basic principles of tradmeark law, namely that trademarks can only be granted and are only valid in specific business categories/markets that the trademark holder does business in.

    e.g. If i was called My Mcdonald I could not start a fast food business and call it Mcdonalds burgers, but if i wanted i could start a business called Mcdonalds Golfing Supplies so long as i did not brand it in such a way that people would be confused into thinking it was related to the well known junk food pusher.

    If tradmeark laws are expanded to be more like copyright, therefore giving tradmark holders complete control over their trademarks in the way creaters do for copyrighted works then, as the article mentions it would have a large impact on free speach and things like comparitve advertising.

    reply to this | link to this | view in thread ]

  2. identicon
    The infamous Joe, Jun 14th, 2007 @ 4:19am


    I agree that this will be a horrible move and will have far reaching effects that I'm sure the great state of California isn't aware of or doesn't completely understand... however, that being said-- unless I don't understand what I'm reading (and that is entirely possible) it seems that the following:

    14205. A mark by which the goods or services of any applicant for registration may be distinguished from the goods or services of others shall not be registered if it meets any of the following criteria:

    (f) It consists of or comprises a mark that so resembles a mark registered in this state or a mark or trade name previously used by another and not abandoned, as to be likely, when used on or in connection with the goods or services of the applicant, to cause confusion or mistake, or to deceive.
    (emphasis added)

    says that you can have a McDonalds fast food and a McDonalds golfing supplies, probably as long as you don't use those damn double arches.

    It seems to me that if this bill is passed it will only result in California trying to force companies in *other* states to bend to their law.. kind of like when the RIAA tries to make other countries follow our IP laws. Am I incorrect in this? Any company in Nevada can tell a complaining company in California to 'Suck it Trebeck', right?

    reply to this | link to this | view in thread ]

  3. identicon
    Protoplasm, Jun 14th, 2007 @ 4:25am

    Revenge of the Bean Counters!

    The developing trend, or should I say, "the runaway steamroller syndrome" of pro-business government legislation, is leading towards a serious revocation of consumerist protections. Profit-at-all-costs is the objective, and in the short term, consumers have little to no recourse. How long before someone with the same surname as a corporate concern will have to pay licensing to use their own name?

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Jun 14th, 2007 @ 5:21am

    Mike Row

    IF i remember correctly, it happened to Mike Row. He owned the website and microsoft was pissed. if you fail at spelling that badly... then there is no recourse.

    reply to this | link to this | view in thread ]

  5. identicon
    Ajax 4Hire, Jun 14th, 2007 @ 5:29am

    There is SysCo and Cisco.

    Cisco is a network infrastructure provider;
    SysCo is a food distribution company, internal infrastructure.

    When is Y like an I. When is I like a Y.

    reply to this | link to this | view in thread ]

  6. identicon
    Vincent Clement, Jun 14th, 2007 @ 5:35am

    Re: Revenge of the Bean Counters!

    It's not pro-business government legislation, it's incumbent/established business government legislation.

    If government was really 'pro-business', it would eliminate copyright, patent and trademark legislation and let companies duke it out.

    reply to this | link to this | view in thread ]

  7. identicon
    Cixelsid, Jun 14th, 2007 @ 5:49am

    Re: Mike Row


    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Jun 14th, 2007 @ 5:50am

    Re: Re: Revenge of the Bean Counters!

    Oh the companies are duking it the form of "lobbying". Whoever can lobby the most will get their way with the government.

    reply to this | link to this | view in thread ]

  9. identicon
    Sanguine Dream, Jun 14th, 2007 @ 6:18am


    Several possible scenarios could come from this:

    1. Fans of California MLB teams are going to have a hard time getting the scores of a game if they don't watch the original broadcast if this extension on trademark passes. And I'm sure NFL, NHL, NBA and other sports leagues wouldn't be far behind.

    2. I could see plenty of corporate enities adopting the leapfrog strategy that is being used in all these "free trade agreements" that are being setup all over the world. They would set some extremely draconian precedent in California then try to enforce said precedent in other states.

    3. There is a court in Texas that is pretty much copyright holder friendly. More than likely several trademark holder friendly courts would strout up in California.

    Any combination or none of these may happen or something even worse these may happen is this extension were to pass.

    reply to this | link to this | view in thread ]

  10. identicon
    Overcast, Jun 14th, 2007 @ 6:43am

    And along with Copyright and Patent law - it's going to be so overused that soon, it will loose it's meaning anyway

    reply to this | link to this | view in thread ]

  11. identicon
    Casper, Jun 14th, 2007 @ 7:28am

    Multiplying Problems

    The government only exists because of the population. Companies only exist because of the population. At some point people will start working up a rebellion against system changes such as this. No matter what the law says, it does not have direct control over a persons actions. If the individual stops acknowledging a law, then the law is as good as dead. Punishing people for a law they refuse to acknowledge is futile due to the overwhelming power social structures have. You can't punish everyone, everywhere, all the time and they will not learn or change because of the punishment.

    This is a key part of the file sharing/copyright infringement problem with the music/movie industry. There is growing sentiment that what the perpetrators are doing is not wrong morally and therefore they the "good guys". The more people who do not consider it wrong, the more support they gain and the less anyone cares that there is a law on the books saying otherwise. Peoples social structures are the primary controlling force, not laws.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, Jun 14th, 2007 @ 7:40am

    hope this isn't copyright infringement...

    "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

    reply to this | link to this | view in thread ]

  13. identicon
    Don, Jun 14th, 2007 @ 7:40am

    I'm not really sure why these people can't understand a simple fact of nature: all human laws are trumped by natural laws. Always. And one of those natural laws of cause and effect is that the broad and more inappropriately you regulate something, the more people who will simple ignore the all restrictions of that law/rule, even the legitimate ones.

    Case in point;
    5-6 years ago most people would have supported efforts of industry and law enforcement to eliminate real crime (in this case counterfitting and profiteering). Unfortunately, they've bastardized copyright to the point where nobody even cares about the legitimate uses or protections of copyright anymore.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, Jun 14th, 2007 @ 12:33pm

    Protection from Criticism

    It's being pushed by the big brands. They don't like people talking badly about their products online, it affects their brands, so they want to control how their name is used.

    Corporate rights trump free speech.

    reply to this | link to this | view in thread ]

  15. identicon
    shamed american, Jun 14th, 2007 @ 4:08pm

    Re: Re: Revenge of the Bean Counters!

    Kudos to Vincent Clement for saying it like it is!

    Someone really should tally exactly how much the friends of this 8 year administration have made at our/the world's expense.

    Then break it down into how much of that was profit from the war/s.

    It's already too late to actually do anything at all to Haliburton for it's part, as they've moved their head office just out of jurisdiction range. Funny how that's where their "Interests" lie. It takes the impending threat of investigation for them to cut and run, especially since knowing their protection plan runs out in 18 months.

    reply to this | link to this | view in thread ]

  16. identicon
    kiara devndria wilson, May 8th, 2008 @ 2:36pm


    why are person pervert and why are they at schools and why are they at work and why are thhey a round children and why do they kill people when they are do whit them and why are pervert in this world can you anwer that for me and how many pevert are there in this world i what to no because i am a children in i do not what to be bye a pevert so give me me a anwer when you read this ok this is from a girl name kiare in i what m y awner ok the may not be spell right ok i what my anwer write back

    reply to this | link to this | view in thread ]

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