Shattering pyrex To Show A Massive Weakness In Trademark Law

from the turn-up-the-heat-and-it-shatters dept

Trademark at its best is a means to protect the public and consumers. A brand may be associated with a particular product and a particular level of quality. Consumers seeking exactly that product and quality will seek that brand; Trademark laws ensure they're getting the real thing.

Take Pyrex: it's heat-resistant glass, what we used in chemistry lab in high school, what you buy if you're cooking and baking with a lot of heat changes. Except it's not, as this highly amusing video demonstrates (start watching at about 28:00):
What I and everyone I know always called Pyrex is in fact borosilicate glass. I didn't even know the term "borosilicate" until I watched this. Pyrex has never been commonly referred to as "Pyrex brand borosilicate glass." It was just Pyrex, the stuff you used in a lab, that you could heat up and cool down without breaking.

Trademark treats brands as "property," controlled exclusively by "owners," who can buy and sell them:
In 1998, Corning divested its consumer products division which subsequently adopted the name World Kitchen, acquiring the rights to the pyrex® trademark. The company introduced clear tempered soda-lime glass kitchenware and bakeware under the pyrex® name. link
According to Wikipedia, Corning's responsibility extends to this formality:
When trademarked as PYREX® (all UPPER CASE LETTERS plus, in the USA, a trademark notice comprising a capital “R” in a circle) the trademark includes clear, low-thermal-expansion borosilicate glass used for laboratory glassware and kitchenware, plus other kitchenware including opaque tempered high-thermal-expansion soda-lime glass, pyroceram, stoneware, and metal items See. e.g., http://www.amazon.co.uk/s?index=kitchen-uk&field-keywords=pyrex. European trademark usage differs from American and the encircled "R" is not present on European PYREX items.

When trademarked as pyrex® (all lower case letters plus a trademark notice comprising a capital “R” in a circle) the trademark includes clear tempered high-thermal-expansion soda-lime glass kitchenware, plus other non-glass kitchenware, made by World Kitchen. See, e.g., http://www.amazon.com/s/ref=bl_sr_kitchen?node=1055398&field-brandtextbin=Pyrex
I don't think this passes the "moron in a hurry" test, but it's not put to the test because Corning isn't having a dispute with a competitor. Rather, they are misleading consumers, and Trademark law as it currently exists offers no remedy.

Consumer Reports did a video about glass bakeware exploding, but didn't address the Trademark issue at all:
Imagine if a counterfeiter were passing off soda lime glass as Pyrex. The outcry would be huge. Government agencies would be busting down doors and arresting people and using it as a reason to pass ACTA. But if Corning and their licensees do it under the Pyrex brand, all we can do is shrug.

In his book Against Intellectual Property, Stephan Kinsella argues that Trademark should protect the rights of consumers. He suggests Trademark suits should be brought by consumers against monopolists, not by monopolists against competitors. I have no answers, and like I said I'm not a Trademark abolitionist. I certainly don't want to increase the reach of Trademark law; I generally don't think more lawsuits are an answer to anything. But it's a good story to show that Trademark isn't as functional as we'd like it to be.

Filed Under: consumer protection, pyrex, trademark
Companies: pyrex


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  1. icon
    Samuel Abram (profile), 8 Feb 2012 @ 7:44pm

    I think this A.C. has it right.

    Sorry Mike, but I think this AC has it right. Trademark is supposed to be consumer protection, and I think Trademark's function in identifying the source of the product helps consumers. Let me explain:

    Remember the "New Coke" fiasco in the 1980's? I don't. But we're all familiar with the story: Pepsi is outselling Coke, Coke tries to regain market share by introducing a newer formula that tastes more like Pepsi, huge backlash, Coke reverts to old formula, Coke Classic is back in business.

    Imagine if there were no trademark: Pepsi could sell its formula deceptively as Coke and the real Coca-cola Company could claim it had nothing to do with it, and there would be confusion over who's telling the truth, because Pepsi could legally do something like that. Or imagine the inverse, where Coca-cola sells its formula deceptively as Pepsi to attempt to gain back market share, and Pepsi - though claiming it had nothing to do with it - suffers because people think its popular formula has changed even though Pepsi had nothing to do with it.

    With Trademark, Coke can't market its products as Pepsi and vice versa, so we know the source of the formula changes: Coke changed its formula, and thanks to a massive backlash, changed back.

    Now, the Pyrex issue isn't exactly the same, since changing the chemical composition of glass is not as noticeable as changing the formula for a soft drink (not to mention Coke had advertised their formula change and Pyrex didn't). However, the substantive interests of the consumer are protected because we now know, thanks to the internet, that this is the doing of Pyrex itself, and not some knock-off brand. It is a self-inflicted wound rather than a counterfeit stabbing. Thanks to trademark, we now know that we should avoid the real thing because the trademarked brand is itself tarnished by cost-cutting measures rather than the result of a knock-off competitor. This could be remedied by taking our money elsewhere (if Pyrex isn't the only brand sold in your neighborhood).

    Trademark may not address the issue of the brand hurting itself rather than counterfeiters hurting the brand, but that's why we should have competition, amirite?

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