Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges…)
from the because-of-course-they-would dept
The Intellectual Property Owners Association (IPO) — which is a sort of “super group” of companies looking to always ratchet up intellectual property laws — had a brief note on their front page on Monday pushing for bringing back SOPA, but with a promise that it’s for trademark law only (the story may disappear from the front page and apparently “archives” are for “members only”):
On September 7 the IPO Board of Directors adopted a resolution supporting in principle legislation to attack online trademark counterfeiting. Such legislation would enable brand owners to file suit against domestic websites selling or offering for sale or distributing counterfeit products, and also as to ?foreign counterfeiting websites,? in order to obtain a court order that would require (a) that financial service providers cease processing payment transaction to the defendant(s) and the foreign counterfeiting website, at least in the United States, (b) that internet advertising service providers cease providing such services to the defendants and the foreign counterfeiting website, at least in the United States, and (c) any other injunctive relief the court may determine as appropriate.
The legislation should focus on trademark counterfeiting only; provide for nationwide personal jurisdiction and venue over any foreign counterfeiting website, so long as such is consistent with due process; and permit e-mail service of process to a domestic or foreign counterfeiting website without requiring leave of court based on the e-mail address listed in domain registration for the administrative or ownership contact and to the e-mail address found on the website, if no real or actual address is available for providing notice to the potential defendant.
All of that sounds nearly identical to parts of SOPA — except the IPO seems to think that if they just focus on the trademark issue, it will be able to sneak it through without a SOPA-like eruption from the public. But the basics here are the same. Allowing companies a private right of action to block out sites (both domestic and foreign) deemed as “counterfeiting websites” is a dangerous plan. Note that, in the past, big brands have regularly declared perfectly legitimate resellers as counterfeiters, and have attacked and sued companies like eBay for not magically stopping people from selling counterfeit goods.
Of course, part of the problem is that these companies regularly exaggerate the issue of “losses” due to trademark infringement and counterfeiting. The numbers are stretched beyond belief. Meanwhile, multiple studies that have looked at the actual size of the problem have found it to be quite small. In fact, multiple studies have found that most people buying counterfeit goods aren’t being fooled, but know they’re buying counterfeit, but are only doing so because they can’t afford the real version. And, the studies have noted, many of the same people later do buy the real version when they can afford it. In other words, counterfeit purchases are often aspirational, rather than acting as a substitute. They’re not doing any harm.
And, of course, the real threat here is that if the IPO can sneak this kind of legislation through, it won’t be that long until someone tries to slip in some language extending the law to copyrights as well. It’ll be slipped in quietly, perhaps with some talk about “harmonizing” different regulations related to trademark and copyright law, hoping that no one notices that basically the original version of SOPA is now the law.
The same IPO notice also talks up its new “Girl Scout” patch, which we had discussed back in March. This was a patch designed by the IPO, but with the support of the US Patent and Trademark Office, so you know it’s basically preaching maximalism:
Cookie selling teaches Girl Scouts valuable business practices. Now they have the opportunity to learn a few more in the form of IP. IPO Education Foundation recently partnered with the Girl Scout Council of the Nation?s Capital and the USPTO to develop the IP patch. The IP patch program teaches girls about the value of IP and the process for obtaining different rights. You can help by telling your friends about the patch or volunteering to talk to a troop about what you do. Click here for more information.
It’s the same basic story we noted back in March. The plan is all about why intellectual property is valuable — not taking a balanced view about where it creates more harm than good, and where other alternatives might be better. It’s especially troubling that it’s focused on girls entering science, technology, engineering and math studies, since those are areas where over-aggressive use of intellectual property have been most damaging, locking up knowledge, rather than increasing the kind of knowledge sharing that drives innovation forward.
Filed Under: counterfeiting, girl scouts, intellectual property, merit badge, private right of action, rogue sites, sopa, trademark
Comments on “Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges…)”
“Cookie selling teaches Girl Scouts valuable business practices.”
It sure does. It teaches them people with money will treat people without money like shit, promising them goods in exchange for service, and shafting them in the end.
And to make it all worthwhile to them: a badge.
My goodness, the entitlement of these people makes me sick to my stomach.
In fact, multiple studies have found that most people buying counterfeit goods aren’t being fooled, but know they’re buying counterfeit, but are only doing so because they can’t afford the real version.
You seem to think that trademark law is only conerned with consumer confusion. It actually has two purposes:
Union Nat. Bank of Texas, Laredo, Tex. v. Union Nat. Bank of Texas, Austin, Tex., 909 F.2d 839, 843-44 (5th Cir. 1990).
Is there any particular reason you never discuss the other purpose for trademarks, i.e., the misappropriation of the markholder’s goodwill by free riders? Do you deny that that’s also a purpose, or do you just willfully ignore it because you don’t like it? Serious question.
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yawn. [BLANK], why won’t ever talk to me about [BLANK], even though [BLANK] continually brings up references where you have in fact talked about your views on [BLANK]?
Broken records are annoying.
Whiny broken records are just [BLANK].
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yawn. [BLANK], why won’t ever talk to me about [BLANK], even though [BLANK] continually brings up references where you have in fact talked about your views on [BLANK]?
Broken records are annoying.
Whiny broken records are just [BLANK].
I’ve only seen Mike discuss consumer confusion. He seems to completely ignore the part of trademark law that’s about protecting the markholder’s goodwill. It’s a valid point.
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He seems to completely ignore the part of trademark law that’s about protecting the markholder’s goodwill. It’s a valid point.
No he doesn’t. The linked article talks about a study that shows MOST people purchasing counterfeits are not fooled into thinking they are buying an original. They buy the fakes until they can afford the real thing and 46% actually do end up buying an original.
It doesn’t seem that protecting the markholder’s goodwill is as important as you are making it out to be. Policy should be based on facts, not some arbitrary fear of some near non-existent bogeyman.
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If there is no consumer confusion, then it is impossible to abuse the trademark holder’s goodwill since nobody is confused about what the trademark holder is or isn’t doing.
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“Serious question.”
I laugh when I read this.
I generally agree with trademark law but for you to defend it the way you do makes you look silly. This reflects poorly on your position and makes it less likely that people will take you and, by extension, your position seriously. You are only harming your position and for you to respond with such a childish, silly, and accusatory comment and then say ‘serious question’ is only going to make people think twice about taking you seriously. There is a proper way to have a serious discussion and to ask serious questions. The way you did it is a bad example of this.
First of all quoting a union bank on laws that serve its own private interests doesn’t really hold much weight of anything.
“both of which are seen as promoting competition”
seen as promoting competition … by whom and why should I care how they see it as? I don’t see trademark law as having that much to do with competition. That’s not to say I disagree with it but, if anything, counterfeit products are a form of competition.
“to protect consumers against confusion and monopoly, and”
Against confusion yes, against monopoly … not so much (at least not directly).
“to protect the investment of producers in their trade names to which goodwill may have accrued and which goodwill free-riders may attempt to appropriate by using the first producer’s mark, or one that is deceptively similar.”
No, I think the purpose of trademark is (or should be) to protect consumers from confusion. That’s how it’s usually advertised.
But the second reason doesn’t really address the argument being made in the OP. The argument is that most people (allegedly) know that the product is counterfeit. If this is true how does the counterfeit affect the goodwill and reputation of the original since no one thinks it’s an original.
Again, that’s not to say I disagree with trademark law I just disagree with some of your reasoning.
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I generally agree with trademark law but for you to defend it the way you do makes you look silly. This reflects poorly on your position and makes it less likely that people will take you and, by extension, your position seriously. You are only harming your position and for you to respond with such a childish, silly, and accusatory comment and then say ‘serious question’ is only going to make people think twice about taking you seriously. There is a proper way to have a serious discussion and to ask serious questions. The way you did it is a bad example of this.
I feel that same way when Mike attacks the integrity of those he disagrees with.
First of all quoting a union bank on laws that serve its own private interests doesn’t really hold much weight of anything.
“both of which are seen as promoting competition”
seen as promoting competition … by whom and why should I care how they see it as? I don’t see trademark law as having that much to do with competition. That’s not to say I disagree with it but, if anything, counterfeit products are a form of competition.
I’m quoting the Fifth Circuit’s recitation of the purpose of trademark law. That one of the parties is a bank is irrelevant. And, yes, it’s competition. But it’s unfair competition. Trademark law is a subset of unfair competition law.
No, I think the purpose of trademark is (or should be) to protect consumers from confusion. That’s how it’s usually advertised.
There’s what you think the law should be, and then there’s what the law actually is. I’m pointing out that Mike’s “journalism” only discusses the former. Considering he’s made a career of lambasting those who leave out the truth, it seems appropriate to do the same to him.
But the second reason doesn’t really address the argument being made in the OP. The argument is that most people (allegedly) know that the product is counterfeit. If this is true how does the counterfeit affect the goodwill and reputation of the original since no one thinks it’s an original.
Trademark law also protects the markholder’s goodwill from misappropriation. It incentivizes the markholder to create higher quality goods because he knows that his goodwill will be protected. People want the knock-off only because the markholder has invested time, energy, and money into his goodwill. The infringer profits by free riding and reaping where he has not sown.
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Trademark law also protects the markholder’s goodwill from misappropriation. It incentivizes the markholder to create higher quality goods because he knows that his goodwill will be protected. People want the knock-off only because the markholder has invested time, energy, and money into his goodwill. The infringer profits by free riding and reaping where he has not sown.
I’m going to deal with this last bit with regards to the producer-creative industries, which have had considerable evidence that having knowledge that you possess a counterfeit can, in certain circumstances, lead to both innovation (through adaptation of the original concept) and increasing demand for the legitimate item (for example, counterfeit iPhones can lead to increased demand for legitimate iPhones once the initial purchase is obsoleted.)
You do, however, have a valid point about the appropriation of goodwill angle (even if you could have phrased it better). Thanks for that cite, by the way.
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I’m going to deal with this last bit with regards to the producer-creative industries, which have had considerable evidence that having knowledge that you possess a counterfeit can, in certain circumstances, lead to both innovation (through adaptation of the original concept) and increasing demand for the legitimate item (for example, counterfeit iPhones can lead to increased demand for legitimate iPhones once the initial purchase is obsoleted.)
I’m sure like most things there’s pros and cons.
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Trademark law also protects the markholder’s goodwill from misappropriation. It incentivizes the markholder to create higher quality goods because he knows that his goodwill will be protected. People want the knock-off only because the markholder has invested time, energy, and money into his goodwill. The infringer profits by free riding and reaping where he has not sown.
Irrelevant. For this to be true, there would have to be actual confusion between the markholder and the “free-rider.” If, as pointed out, there is no confusion (consumers know the goods are counterfeit) then there is no goodwill lost (because, well, consumers know they aren’t the same company).
If you cannot establish that consumers were confused or mislead due to trademark then any other protection relating to trademark law is meaningless. It’s not a valid point because to discuss markholder’s goodwill first you must establish market confusion. And market confusion is already the primary negative aspect of violating trademark law (which Mike has repeatedly stated he is not against) so the reputation of the injured party is moot.
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“And, yes, it’s competition. But it’s unfair competition. Trademark law is a subset of unfair competition law.”
Fair enough.
A quote from wikipedia
“In principle, trademark law, by preventing others from copying a source-identifying mark, reduces the customer’s costs of shopping and making purchasing decisions, for it quickly and easily assures a potential customer that 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. The law thereby encourages the production of quality products and simultaneously discourages those who hope to sell inferior products by capitalizing on a consumer’s inability quickly to evaluate the quality of an item offered for sale.[1] [internal punctuation omitted]”
http://en.wikipedia.org/wiki/United_States_trademark_law#cite_note-qualitex-1
(though this was a 1995 ruling and, as pointed out, is relatively recent).
AFAIK the original intent was consumer protection. In a sense protecting consumers from being fooled does, indirectly, protect businesses from having their names stolen and used by other businesses pretending to be them so the functions are pretty much synonymous. If it will likely fool your average consumer it could hurt both the consumer and, by extension, the business.
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I feel that same way when Mike attacks the integrity of those he disagrees with.
You’re a lying scumbag as always. Or can you prove that with any quote?
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“I feel that same way when Mike attacks the integrity of those he disagrees with.”
IP extremists have repeatedly shown that they have no integrity. Here is just one example.
“Your comments were deleted because they are not deemed acceptable to further discussion on this topic. “
http://www.ipwatchdog.com/2013/12/29/patent-erosion-2013-what-would-the-founding-fathers-think/id=47119/
When IP extremists disagree with something they outright censor their opponents when possible. The mainstream T.V. media is evidence of this. They have ran self serving pro-IP and copy protection promotions and scaremongering in the past (as has been posted by techdirt) yet they generally leave criticisms off of their network (though there are some more recent exceptions but that’s only due to the Internet’s influence on the media) despite the fact that their claims have been mostly imaginative and completely made up. They abuse their wrongfully granted monopoly power over broadcasting and cableco monopolies, monopoly power that they undemocratically stole through back door dealings, to present the public with unsupported propaganda and factual lies without allowing any criticisms or opposing points of views to be presented and without allowing anyone to investigate and then question their statements of fact over the air. They have subverted our democratic process to keep retroactively extending copy protection laws against the public interest just to serve their own interests. So it’s not hard imagine why people question the integrity of IP supporters.
The IP supporters around here have often contradicted themselves and have shown a long history of not having integrity and Mike has every reason to question their integrity. Trust must be earned, not asserted, and if you haven’t done anything to earn that trust people will naturally question your integrity. Mike has earned trust. He is non-anonymous and has a long history of being honest. When some anonymous person comes here and makes questionable and often unsupported statements that seem to be the talking points of various industry interests then it’s natural to question their integrity. As an anonymous person it’s naturally much more difficult for you to prove your integrity in the same way that Mike has (and you hold the burden of proving your integrity). Not that I have anything against being anonymous, I post anonymously, just that a non-anonymous person with a good reputation holds a lot more weight when they question the integrity of an anonymous person than the other way around. The shills here have often claimed that Mike works for Google (not saying that you’re one of them but … again, you’re anonymous, so how do I know that you haven’t). They have provided no evidence of this. Yet they make these unsupported claims behind anonymity and expect to be taken seriously when they haven’t given others the opportunity to question their potential conflicts of interest. It’s easy for you to make baseless claims without giving anyone else the opportunity to criticize you as a whole based on all the statements you have made and to question you on other subjects. When you turn out to be wrong about something you can just pretend you never said it. Mike, as someone who posts non-anonymously, can’t do that. That’s exactly what gives him more credibility. That’s exactly what makes people naturally question your integrity. When people have seen many anonymous criticisms against Mike and his position that end up being wrong (ie: IP supporters that used to defend Prenda claiming they will win their court battles and then they lose, IP supporters claiming that Mike works for Google despite a lack of evidence) and then we see IP supporters continuing to anonymously post more pro-IP propaganda despite having a long history of being wrong and we don’t ever see them admitting that they were wrong about anything it’s easy for people to lump you with all of the other anonymous IP defenders that have been consistently wrong. Why? Because those people that don’t even have the integrity to ever admit that they were wrong about anything and try to hide behind anonymity are likely still posting and you could be one of them. Mike, OTOH, has a long history of being correct and when he’s wrong he’s not anonymous about it and he has a history of having the courage to admit his mistakes. That’s partly why you are in no position to question Mike’s integrity without any support and it’s hilarious when you do. When he posts something I have his history of posts to help me determine the likelihood of him being right. If he’s often right in the past that will give me more reason to spend the time reading and considering his opinion. IP supporting shills that post anonymously have a long long history of being wrong. So when some random anonymous shill without any reputation comes here and posts their propaganda I have no specific history to go by regarding their post but I do have a long history to go by when it comes to pro-IP propaganda being wrong and never later admitting to being wrong and so it’s easy for me to just lump their post together with the rest of the pro-IP propaganda. For example the day I see an IP supporter come here and admit that they defended Prenda and argued that the courts will rule in their favor and that they were wrong about this is the day I will give IP supporters more respect. But IP supporters won’t even acknowledge that they were ever wrong about anything instead choosing to hide behind anonymity to deny any wrong claims they ever made.
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Is there any particular reason you never discuss the other purpose for trademarks, i.e., the misappropriation of the markholder’s goodwill by free riders? Do you deny that that’s also a purpose, or do you just willfully ignore it because you don’t like it? Serious question.
I have regularly discussed it in the past, though you (as per usual) pretend I have not. I have explained that it’s a recent change to trademark law, and a complete bastardization of the law and its intent.
https://www.techdirt.com/articles/20090923/0215516292.shtml
I’ve said this for years (not hard to find) even though you claim I ignore it.
Funny.
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I have regularly discussed it in the past, though you (as per usual) pretend I have not. I have explained that it’s a recent change to trademark law, and a complete bastardization of the law and its intent.
https://www.techdirt.com/articles/20090923/0215516292.shtml
I’ve said this for years (not hard to find) even though you claim I ignore it.
Funny.
Nice try. In that article, you discuss dilution, and you mention what you think is “the real purpose of trademark law: to prevent consumer confusion and ‘passing off’ of one good as made by someone else.” I’m not talking about dilution (though I think you’re wrong about that as well). I’m talking about your claim that trademark law was originally only about consumer confusion. It wasn’t. Protecting markholders from misappropriation has always been a part of trademark law.
I recommend this article for starters: http://www.inta.org/Academics/Documents/finalndlawreview.pdf (“As this Article demonstrates, trademark law was not traditionally intended to protect consumers. Instead, trademark law, like all unfair competition law, sought to protect producers from illegitimate diversions of their trade by competitors.”)
Can you explain why you think that the only “real” purpose of trademark law is to protect against consumer confusion? That’s the issue I’m actually talking about.
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Oh, this is a good one.
You’re using the INTA as your primary reference! An organization which describes itself as:
I cannot think of a better example of what an industry shill does.
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Oh, this is a good one.
You’re using the INTA as your primary reference! An organization which describes itself as:
The International Trademark Association (INTA) is a global association of trademark owners and professionals dedicated to supporting trademarks and related intellectual property in order to protect consumers and to promote fair and effective commerce.
I cannot think of a better example of what an industry shill does.
Yes, it happens to be posted on that site. Maybe you’ll prefer this link to the Notre Dame Law Review where it was originally published: http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1309&context=ndlr
When you get past the URL and on to the substance, maybe you can comment on that too. I think McKenna’s argument that it was the addition of consumer confusion that led to the expansion of trademark rights should be particularly interesting to those who think that “property talk” is the “problem.” He says that under the original natural rights view of trademarks, the rights would be more circumscribed than they are today.
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“Yes, it happens to be posted on that site. Maybe you’ll prefer this link to the Notre Dame Law Review where it was originally published: http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1309&context=ndlr“
After reading through some of it it still reads like a document written by industry shills often making unbacked assertions that are simply not true. Here is just one example
“Because those property rights were grounded in the
natural rights theory of property accepted by most judges”
The founding fathers, such as Thomas Jefferson, did not believe government established property rights were natural rights. and to just assert that most early judges believed such a thing (along with many of the other very broad assertions made in that document) seems suspect.
The whole thing just reads like a pro-industry opinion piece. Even your document seems to acknowledge
“It would be difficult to overstate the level of consensus among commentators that the goal of trademark law is—and always has been—to improve the quality of information in the marketplace and thereby reduce consumer search costs.”
tacitly acknowledging that it’s opinion is unorthodox and that it’s trying to argue an unorthodox position.
The document even states
“traditional trademark rights were considera-bly narrower than those recognized today. Specifically, a trademark owner was entitled to relief only against competitors that dishonestly marked their products and passed them off as those of the mark owner.”
Perhaps because the original primary goal of these laws is to protect consumers which would make sense if the above were true (though that’s not to say that as a secondary side effect goal they can’t be used to protect producers. nothing wrong with protecting both). Yet the document tries to, without support, assert the opposite by saying
“Trade-mark law primarily sought to regulate the relationship between com-petitors; any benefits to consumers were secondary”
Sure seems like the opposite is true and even the document, which seems to acknowledge that it’s fighting an uphill argument against a consensus that disagrees with it and against evidence that suggests otherwise (ie: the narrow nature of these laws curtailed to mostly protect consumers).
I think Mike is spot on. Trademark law was and should be about consumer, and not producer, protection.
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its opinion *
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After reading through some of it it still reads like a document written by industry shills often making unbacked assertions that are simply not true. Here is just one example
“Because those property rights were grounded in the
natural rights theory of property accepted by most judges”
The founding fathers, such as Thomas Jefferson, did not believe government established property rights were natural rights. and to just assert that most early judges believed such a thing (along with many of the other very broad assertions made in that document) seems suspect.
You cut that sentence off. It says: “Because those property rights were grounded in the natural rights theory of property accepted by most judges in the nineteenth century, however, traditional trademark rights were considerably narrower than those recognized today.”
He’s talking about judges in the nineteenth century, not the founding fathers. You’re conflating two different things.
Examples of nineteenth century courts treating trademarks as property rights are plentiful. For example, a unanimous Supreme Court in 1879 said:
In re Trade-Mark Cases, 100 U.S. 82, 92 (1879).
And then there’s the Supreme Court of California in 1865:
Derringer v. Plate, 29 Cal. 292, 294-95 (1865).
There are numerous examples of judges in the nineteenth century treating trademarks as property rights. The focus on consumer confusion was secondary, as explained in detail in McKenna’s article. The view was solidly based in natural law since the property rights derived from use, that is, labor.
As far as Jefferson goes, I recommend this piece: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892062
The document even states
“traditional trademark rights were considera-bly narrower than those recognized today. Specifically, a trademark owner was entitled to relief only against competitors that dishonestly marked their products and passed them off as those of the mark owner.”
Perhaps because the original primary goal of these laws is to protect consumers which would make sense if the above were true (though that’s not to say that as a secondary side effect goal they can’t be used to protect producers. nothing wrong with protecting both). Yet the document tries to, without support, assert the opposite by saying
“Trade-mark law primarily sought to regulate the relationship between com-petitors; any benefits to consumers were secondary”
Sure seems like the opposite is true and even the document, which seems to acknowledge that it’s fighting an uphill argument against a consensus that disagrees with it and against evidence that suggests otherwise (ie: the narrow nature of these laws curtailed to mostly protect consumers).
You’re not addressing any of the case law or treatises cited in the article. He cites numerous examples of courts explicitly saying that they’re protecting the markholder’s interests in the mark against misappropriation by others.
I think Mike is spot on. Trademark law was and should be about consumer, and not producer, protection.
Mike has proffered absolutely no evidence whatsoever to back up his assertion that the “real purpose of trademark law” is to protect consumers.
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“You cut that sentence off. It says: “Because those property rights were grounded in the natural rights theory of property accepted by most judges in the nineteenth century, however, traditional trademark rights were considerably narrower than those recognized today.” “
Which is exactly the point. If the primary purpose of trademark law was to prevent consumer confusion then it makes sense that trademark law was narrower than it is today because it doesn’t need to be any broader than what’s necessary to prevent consumer confusion. The author is trying to state an opinion against the evidence that goes against that opinion.
“He’s talking about judges in the nineteenth century, not the founding fathers.”
and we’re trying to discuss the original purpose of trademark law (at least in the U.S.).
“The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use by all other persons, has been long recognized by the common law and the chancery courts of England and of this country, and by the statutes of some of the States. It is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity, with compensation for past infringement.”
Fair enough. First of all it doesn’t directly mention it as a natural right. Natural rights, by definition, don’t come from government. They’re rights that we try to prevent government from taking away (at least certain natural rights, not necessarily all of them). IP comes from government and so isn’t a natural right because it doesn’t meet the definition.
and you would be right, in more recent years judges have been starting to conflate the two.
“You’re not addressing any of the case law or treatises cited in the article. He cites numerous examples of courts explicitly saying that they’re protecting the markholder’s interests in the mark against misappropriation by others.”
In order to protect consumer interests and the interests to serve the public interest. Even the first court ruling you quote suggests this.
“The first of these is the eighth clause of sect. 8 of the first article. That section, manifestly intended to be an enumeration of the powers expressly granted to Congress, and closing with the declaration of a rule for the ascertainment of such powers as are necessary by way of implication to carry into efficient operation those expressly given, authorizes Congress, by the clause referred to, ‘to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.'”
That is trademark law is derived from the portion of the law in the constitution intended to promote the progress and serve a public interest. The primary beneficiaries are the public. Yes, protecting the legal right of the mark holder is a purpose (as the quotes you give suggest) but only as a means to the end of serving the public interest.
and more quotes
“The argument is that the use of a trade-mark—that which alone gives it any value—is to identify a particular class or quality of goods as the manufacture, produce, or property of the person who puts them in the general market for sale; that the sale of the article so distinguished is commerce; that the trade-mark is, therefore, a useful and valuable aid or instrument of commerce, and its regulation by virtue of the clause belongs to Congress, and that the act in question is a lawful exercise of this power.”
https://bulk.resource.org/courts.gov/c/US/100/100.US.82.html
The authority to regulate trademark comes from the fact that it’s a useful and valuable aid or instrument of commerce and government has an interest in regulating commerce its constituents (the public). The fact that it also serves the mark holder is a means to the end of serving the broader interests of commerce and the public and their interests in commerce.
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“government has an interest in regulating commerce its constituents”
should read
“government has an interest in regulating commerce to serve its constituents”
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That is it’s true that trademark was (still is) intended to serve the interests and legal rights of mark holders but primarily as a means to the primary end of serving the public interest and the interests of consumers. Even the rulings you quote seem to suggest this. Its intent to serve the interests of mark holders as an end in its own is secondary.
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Which is exactly the point. If the primary purpose of trademark law was to prevent consumer confusion then it makes sense that trademark law was narrower than it is today because it doesn’t need to be any broader than what’s necessary to prevent consumer confusion. The author is trying to state an opinion against the evidence that goes against that opinion.
His point is that when trademarks were seen as simply property rights, the rights were narrower. It’s only when consumer confusion became the focus that the rights broadened. For example, under the property view, a markholder only had rights in his actual uses of the mark. The modern focus on confusion, instead of actual use, gives us things like the related goods doctrine, where the markholder controls uses of the mark for goods the markholder doesn’t actually sell. So the irony is that the move away from property accounts for the expansion.
and we’re trying to discuss the original purpose of trademark law (at least in the U.S.).
What do the Founders have to do with that?
Fair enough. First of all it doesn’t directly mention it as a natural right. Natural rights, by definition, don’t come from government. They’re rights that we try to prevent government from taking away (at least certain natural rights, not necessarily all of them). IP comes from government and so isn’t a natural right because it doesn’t meet the definition.
People form governments to protect their civil and natural rights. Neither is self-executing. You should read up on social contract theory.
That is trademark law is derived from the portion of the law in the constitution intended to promote the progress and serve a public interest. The primary beneficiaries are the public. Yes, protecting the legal right of the mark holder is a purpose (as the quotes you give suggest) but only as a means to the end of serving the public interest.
You’re completely misreading the opinion in the Trade-Mark Cases. The Supreme Court struck down the federal trademark statutes because Congress DID NOT have the authority to enact them under the Copyright and Patent Clauses. The Court left open the possibility that the Commerce Clause could support a federal trademark statute, if it conformed to the narrower understanding of the Commerce Clause that existed at the time. Congress did just that. So, no, you can’t point to the Copyright and Patent Clauses and deduce anything about trademarks.
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You make some good points.
“For example, under the property view, a markholder only had rights in his actual uses of the mark.”
What does this mean? If the trademark holder was unable to stop the use of someone else selling a related good from using their mark then what would have been the point?
“The Supreme Court struck down the federal trademark statutes because Congress DID NOT have the authority to enact them under the Copyright and Patent Clauses.”
Fair enough. but it still shows congresses original attempt to pass these laws under a section of the constitution intended to serve a public good.
Mike has also posted on this before.
“How Trademark Law Has Turned From A Consumer Protection Law, Into A Weapon To Hinder Competition”
https://www.techdirt.com/articles/20100926/21454311173/how-trademark-law-has-turned-from-a-consumer-protection-law-into-a-weapon-to-hinder-competition.shtml
Another interesting read
“The Waning Consumer Protection Rationale of Trademark Law: Overprotective Courts and the Path to Stifling Post-Sale Consumer Use
…
Many commentators have criticized modern courts for drifting from this goal of consumer protection. Contrary to these commentators’ assertions, courts have actually over-protected consumers from confusion through the expansion of various trademark doctrines, largely due to the supposed consumer confusion that has corresponded with the proliferation of product placement in popular media.”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2019884
“People form governments to protect their civil and natural rights. Neither is self-executing. You should read up on social contract theory.”
From wikipedia
“From this shared starting point, social contract theorists seek to demonstrate, in different ways, why a rational individual would voluntarily consent to give up his or her natural freedom to obtain the benefits of political order.”
http://en.wikipedia.org/wiki/Social_contract
Natural rights/freedoms are not something that can be granted by government. IP requires government. It requires government to take away a natural freedom/right that I have in nature, namely, the right to freely copy as I please. This right exists in nature absent government and is thus a natural right. IP is not a natural right for the very reason that government is required to enact it. At least not by any reasonable definition of natural right. To argue otherwise is to dishonestly pervert the definition of a natural right to mean something other than what most people consider it to mean. By the law of nature (as Thomas Jefferson says) I can freely copy anything I please and property belongs to whoever currently possesses it. Property rights are an act of government and not a result of natural rights. and like other laws (including property laws) IP should only be intended to serve the public interest.
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You only consider IP to be a natural right because you’re using a different definition of natural right than the rest of us. You don’t get to just make up your own definition of the word ‘natural right’ because you don’t like the definition everyone else uses and then claim that IP is a natural right. That’s not how you get taken seriously. It’s a quick way to be thought of as dishonest.
Nature does not grant you the privilege to prevent others from copying. Animals may copy each other or even humans and learn from each other. To copy from each other is something nature grants us. Copying is natural. Any government restrictions on nature is a restriction of our natural right. IP requires government and is a government restriction on natural rights.
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What does this mean? If the trademark holder was unable to stop the use of someone else selling a related good from using their mark then what would have been the point?
It used to be that a markholder only had rights over the use of his mark for the SAME good. Now that confusion is the test, the markholder has control over the use of his mark for related goods. The classic example here is the Aunt Jemima case. Aunt Jemima sold pancake mix. Another company decided to sell pancake syrup using the Aunt Jemima name. Under the traditional property view of marks, this would have been OK since the markholder for the mix didn’t sell syrup. But the court decided that there could be confusion since the goods were related, and it found infringement. That’s an expansion of trademark rights based on confusion.
Fair enough. but it still shows congresses original attempt to pass these laws under a section of the constitution intended to serve a public good.
Yet, it says nothing about trademark law as it developed in England and then in state common and statutory law. Moreover, whether it’s based on the Copyright and Patent Clause or not, it’s seen as promoting the public good. All property rights promote the public good—not just those that derive from Clause 8 of Section 8 of Article I.
From Wikipedia
“From this shared starting point, social contract theorists seek to demonstrate, in different ways, why a rational individual would voluntarily consent to give up his or her natural freedom to obtain the benefits of political order.”
http://en.wikipedia.org/wiki/Social_contract
The government protects both natural and civil rights. Take, for example, the First Amendment. There is a natural right to free speech, but we have a constitutional amendment that explicitly protects it.
Natural rights/freedoms are not something that can be granted by government. IP requires government. It requires government to take away a natural freedom/right that I have in nature, namely, the right to freely copy as I please. This right exists in nature absent government and is thus a natural right. IP is not a natural right for the very reason that government is required to enact it. At least not by any reasonable definition of natural right. To argue otherwise is to dishonestly pervert the definition of a natural right to mean something other than what most people consider it to mean. By the law of nature (as Thomas Jefferson says) I can freely copy anything I please and property belongs to whoever currently possesses it. Property rights are an act of government and not a result of natural rights. and like other laws (including property laws) IP should only be intended to serve the public interest.
Most jurists in the eighteenth and nineteenth centuries subscribed to a natural law theory of property. Under Roman natural law, the first person to take possession of an object has a claim to it. As Locke later reasoned, people have a claim to the fruits of their labors under natural law. That the law explicitly prescribes the property interest doesn’t detract from the fact that these prescriptions are based in natural law. There’s been tons written about this over the past three centuries. I suggest you do some Googling.
You only consider IP to be a natural right because you’re using a different definition of natural right than the rest of us. You don’t get to just make up your own definition of the word ‘natural right’ because you don’t like the definition everyone else uses and then claim that IP is a natural right. That’s not how you get taken seriously. It’s a quick way to be thought of as dishonest.
No offense, but your understanding appears to be based upon a quick read of a Wikipedia entry. Again, I suggest you read some academic writings on the subject. I would also suggest that you not jump to the conclusion that I’m being “dishonest” because you either don’t understand what I’m saying or don’t agree with me.
Nature does not grant you the privilege to prevent others from copying. Animals may copy each other or even humans and learn from each other. To copy from each other is something nature grants us. Copying is natural. Any government restrictions on nature is a restriction of our natural right. IP requires government and is a government restriction on natural rights.
You’re looking at it from the wrong perspective. Under natural law, one is entitled to the fruits of his labor. When an author labors to create a book, he has a property right in the book consistent with natural law. I’m grossly oversimplifying things, but that’s the gist.
Madison, who in Federalist 43 gave us his insight on the Copyright and Patent Clause, subscribed to the natural law view:
It’s a “right of common law” in Great Britain because it follows from natural law. And he thinks patents do as well, “with equal reason.”
I’m out the door and probably won’t have time to respond until this weekend. Take care.
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“Another company decided to sell pancake syrup using the Aunt Jemima name. Under the traditional property view of marks, this would have been OK since the markholder for the mix didn’t sell syrup. But the court decided that there could be confusion since the goods were related, and it found infringement. That’s an expansion of trademark rights based on confusion.”
“Obviously the public, or a large part of it, seeing this trade-mark on a syrup, would conclude that it was made by the complainant. … In this way the complainant’s reputation is put in the hands of the defendants. It will enable them to get the benefit of the complainant’s reputation and advertisement. These we think are property rights which should be protected in equity.” Id. at 410.
http://dallaslex.com/2012/06/18/true-or-false-aunt-jemima-fundamentally-changed-trade-mark-law/
“Perhaps 15 years ago, it would not have occurred to an attorney to attempt to stop such a use of trademark because it would have been said that it was absurd to suppose that a person seeking pancake flour would buy a can of syrup and be satisfied. Recently the business world has come to realize that such an act as that of that syrup company was an attempt to appropriate the goodwill, the popularity, the celebrity of the Aunt Jemima Mills Co. and pay nothing for it, the business world has come to see that the owner of the goodwill in Aunt Jemima pancake flour may be most seriously damaged by the sale of an inferior “Aunt Jemima syrup.””
http://mentalfloss.com/article/30933/how-aunt-jemima-changed-us-trademark-law
So it maybe true that this was an expansion of trademark law but not for the reasons you give. Trademark law was expanded by the courts because of the expansion of the fact that one company may sell many related products and wish to indicate to consumers that those products are from the same company. Yes, this benefits the company and is the direct reason to allow for such expansions but the ultimate reason is to serve consumers so they don’t get confused. Which was still the ultimate reason that trademark existed before.
As stated, trademark law gets its authority under the commerce clause with the broader attempt to serve the public interest.
“All property rights promote the public good—not just those that derive from Clause 8 of Section 8 of Article I.”
All property rights should be intended to serve the public good. Doesn’t necessarily mean that’s what their intent is or that that’s what they in fact do.
“The government protects both natural and civil rights. Take, for example, the First Amendment. There is a natural right to free speech, but we have a constitutional amendment that explicitly protects it.”
The first amendment is to prevent the government from restricting free speech. It’s not an example of the government protecting free speech it’s an example of the constitution limiting the government’s ability to take it away.
“Most jurists in the eighteenth and nineteenth centuries subscribed to a natural law theory of property.”
(citation needed)
You don’t get to make broad sweeping generalizations without citations. You still haven’t provided any evidence to support that a single judge believed this (yet alone most judges. I’m sure there maybe some judges that did believe this but to say that most judges did …).
“As Locke later reasoned, people have a claim to the fruits of their labors under natural law.”
Even if he did claim that, so one person makes a claim that you agree with and it must be true.
People do not have a claim to the fruits of their labor under natural law. If someone spent all their life creating a sand castle at the beach and no one pays them for it then they have no right to such payment. Furthermore they have no right to the sand castle because it was done on public property. They have no right to the fruits of their labor.
To claim that IP is derived from natural law is to dishonestly define natural law differently than everyone else.
“No offense, but your understanding appears to be based upon a quick read of a Wikipedia entry. Again, I suggest you read some academic writings on the subject. I would also suggest that you not jump to the conclusion that I’m being “dishonest” because you either don’t understand what I’m saying or don’t agree with me.”
No, I’m just citing wikipedia as a source. You haven’t really cited any sources in support of your claims. Even the sources you do cite haven’t really supported your claim.
I do understand what you’re saying. What you’re saying is a dishonest perversion of the meaning of the term natural right. Yes, there merchants and business interests and shills of the past that have tried to dishonestly make such arguments. But that doesn’t make the argument any less dishonest. It’s a dishonest argument that tries to claim that nature grants a right it does not.
“Under natural law, one is entitled to the fruits of his labor.”
That’s under your personal, perverted and dishonest, definition of it. Nature does not entitle anyone to the fruits of their labor. An animal could migrate a thousand miles to go to a location where they thought there was food and water and find out that it’s no longer there. They labored for fruit and received nothing. Nature entitles them to nothing.
“When an author labors to create a book, he has a property right in the book consistent with natural law. I’m grossly oversimplifying things, but that’s the gist.”
No, you’re overly distorting things.
“Madison, who in Federalist 43 gave us his insight on the Copyright and Patent Clause, subscribed to the natural law view:
A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”
None of which implies that IP law is derived from natural law.
“It’s a “right of common law” in Great Britain because it follows from natural law. And he thinks patents do as well, “with equal reason.””
Notice how he says a right of common, and not natural, law in Britain.
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“Which was still the ultimate reason that trademark existed before.”
or the ultimate primary reason *
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“You should read up on social contract theory.”
“As Locke later reasoned, people have a claim to the fruits of their labors under natural law.”
It’s interesting how you bring up social contract theory in relation to natural law.
“17th-century English philosopher John Locke discussed natural rights in his work, identifying them as being “life, liberty, and estate (property)”, and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. “
http://en.wikipedia.org/wiki/Natural_and_legal_rights
Here is another quote (from the same article).
“Another 17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell governed republic, argued for level human basic rights he called “freeborn rights” which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.”
Exactly. IP requires government. It’s bestowed onto people by government. It’s not a natural right.
to go on
Hutcheson
“Unalienable Rights are essential Limitations in all Governments.”
That is they aren’t rights the government provides they are limitations put on government. Like the first amendment.
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“From this shared starting point, social contract theorists seek to demonstrate, in different ways, why a rational individual would voluntarily consent to give up his or her natural freedom to obtain the benefits of political order.”
Exactly. Natural freedoms are something that we give up in the presence of government. IP requires government. It’s not a natural right or freedom.
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“His point is that when trademarks were seen as simply property rights, the rights were narrower. It’s only when consumer confusion became the focus that the rights broadened. For example, under the property view, a markholder only had rights in his actual uses of the mark.”
Why would seeing it as a property right necessarily make those rights narrower. You can equally argue that seeing it as a property right can make them broader. I think that’s one of the problems with ‘seeing it as a property right’. Then the criteria to determine the extent of its application becomes arbitrary. Consumer confusion introduces a much more objective standard by which to determine its application.
“Is there any particular reason you never discuss the other purpose for trademarks”
Perhaps he’s creating a counterbalance to groups like IPO. They will never talk about the downside to Imaginary property rights. Why is that? Serious question.
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Perhaps he’s creating a counterbalance to groups like IPO. They will never talk about the downside to Imaginary property rights. Why is that? Serious question.
Why is it that some group I’ve never heard of might not have made some argument? That’s not a serious question. Does the IPO even deny that trademark law is also about protecting consumers?
They mean “valuable business practices” like “buying politicians and whining until you get your way,” “eliminating the competition because you’re not as relevant as you were,” and “turning the Internet into a fascist propaganda machine to safeguard your profits,” right?
Is this another “think of the children” campaign Exploitation campaign I mean
Yes these Kids know about selling , but what if they decided to make their own cookies made by girl scouts and labeled them Girl Scout Cookies made by REAL Girl Scouts .
Girl Scout badges
What the actual fuck? That’s some pretty sick and twisted shit right there. Creepy as all hell.
scouts
the nazi dream
My only question is are the badges trademarked in china , were I’m almost certain they’re being made , I’d say they should probably start there if they haven’t already, nothing will change except the law in the US the fake patches will still be shipped here via another exit point and point of entry , stupid people push stupid laws.
I can’t wait for the 1-Click Purchasing of new laws.
I wish
I really do wish there was a way that we could all ignore these crazy unacceptable trade deals, big business included. We have shown the government with the backlash against SOPA that we do not want them and just releasing them under another name is sickening, people should not have to do these protests every few years, once the people make their demands known the government should listen and not try to get their little deals through the back door via other trade deals.
maybe on top of fighting this time we should make sure the politicians know and understand they will be targeted when elections come up if they refuse to listen to the overwhelming reaction by the public to these trade deals that only benefit a minority of super rich people.
and now for something completely offensive...
Yes, but at least they counterbalanced it by aiming it at Girl Scouts, rather than Boy Scouts. We’re always being told that not enough women go into STEM careers, so if they’re only warping the minds of young girls, and most of them don’t go into STEM anyway, how much harm can it really do?
(Yes, this post is sarcastic. Also, before getting too offended, note that I’m not making any judgement on women’s abilities regarding STEM, but only observing that it is regularly reported that women who achieve a college degree and pursue a professional career choose a STEM degree/career far less often than equally situated men.)
It's funny
It’s funny how when you’re working for the public interest, you can do it out in the open. Even anonymous posters (not trolls) are welcome. When you’re working against the public interest, you have to do it in secret, behind closed doors, in dimly lit rooms.
I’ve seen quite a few takedown notices come in to my company for counterfeit sales sites. Watches, handbags, jeans… you name it. Some of them are perfectly legitimate, such as complaints from Nike against these god-awful looking high-heeled sneakers that have the Nike “swoosh” on them (seriously? people buy those?). Others are much more questionable and fall more into the discussion here, where the site is selling a watch that might look like a Rolex, but it’s clearly NOT a Rolex; the site even calls it “replica.” Where some of these sites the a mistake is when they put the Rolex logo on their replica watch, bringing the trademark question into the issue.
There’s clearly a way around this that the IP owners can’t fight. I mean, I buy “Frosted Mini-Spooners” from the store all the time, and I don’t see Malt-O-Meal getting sued for counterfeiting Frosted Mini-Wheats.
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Edit fail:
Where some of these sites make a mistake is when they put the Rolex logo on their replica watch, bringing the trademark question into the issue.
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As long as something clearly indicates that it’s a ‘replica’ and not the original then I don’t see a problem with it.
“Cookie selling teaches Girl Scouts valuable business practices.”
No it doesn’t. What a retarded thing to say.
“Now they have the opportunity to learn a few more in the form of IP.”
Learn == brainwash?
“The IP patch program teaches girls about the value of IP and the process for obtaining different rights.”
As the young girls grow into young women, they will learn quickly about the many rights not afforded to them because they are not valued.
“You can help by telling your friends about the patch or volunteering to talk to a troop about what you do”
Yes, they can tell these idiots to shove that patch up their backside.