Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
from the because-of-course-they-would dept
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.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.
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.
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.