from the offense-as-a-defense dept
While I tend to like the use of trademark laws more than other forms of IP, it's long overdue that we all start admitting the realm of trademark has a problem. In a variety of industries, the use of trademarks is either not serving its original purpose or is doing vastly more harm than good. Craft beer is one of those industries, for instance. It's starting to seem like trademark use in certain advocacy realms is getting that way as well.
Take the LGBT community, for instance. As the country and the West becomes a more welcoming and tolerant society, I suppose it was somewhat inevitable that we'd start to see trademark related stories about what is essentially a potential customer demographic. That said, it's been frustrating for some of us to see trademark fights spring up between groups that both advocate for LGBT rights. There was the early example of a fight between bloggers over the term "gaymer", for gay gamers. There was also a fight between two companies that specialize in party-planning for LGBT events over the trademarked term "Gay Days." And now it appears that Pride Toronto, a non-profit that hosts Pride Week events, is attempting to register the names of two marches with the Canadian government.
Pride Toronto, the not-for-profit organization that hosts the popular Pride Week festivities each year, filed trademark applications for “Dyke March” and “Trans* Pride” on July 8, according to the Canadian Intellectual Property Office website. In a statement posted online, Pride Toronto depicted the filings as a defensive measure, saying it was “forced” to apply because a “single individual threatened to personally trademark both of these grassroots events.”And this is where the problem with trademark comes in. If we take Pride Toronto at its word, and indeed the post includes communications from Pride Toronto insisting it will not hold the terms hostage for other marches to use, then the need for a defensive trademark application is a symptom of a broken system. Pride Toronto isn't fearful of any kind of customer confusion. In fact, broad usage of the terms for other Pride events across the world would likely be a boon for Pride Toronto's goals. No, they're afraid of someone else locking up the term and preventing them from using it.
And that means that, at least in this specific case, the system has broken. The idea behind trademark is essentially in the nature of consumer protection in the form of brand identification. Nothing about the actions taken by Pride Toronto has anything to do with consumers; it's all fear of language locks. Now, there are several ways to fix this. Common law with respect to trademarks would serve to protect Pride Toronto should someone come along and try to keep them from using the terms by registering them with the government, by allowing for prior use to serve as a defense. That said, it's still a defense, meaning that Pride Toronto would still have to fight for its use in court.. Having government trademark offices that actually bothered to spend some brain cells examining the terms in applications and refusing marks for generic terms, terms of advocacy, terms of broad usage, would be helpful as well.
As for Pride Toronto, many other LGBT groups expressed outrage at the trademark applications, resulting in some being assured the applications would be withdrawn.
The terms “Dyke March” and “Trans Pride” are employed by activists across the country, some of whom were upset to learn of Pride Toronto’s gambit. In British Columbia, organizers of the Vancouver Dyke March issued a press release Saturday saying they were “stunned” to learn the Toronto group had registered to own their name, slamming the move as “appropriative.” But on Monday, VDM president Catherine Mateosaid Pride Toronto has since “reached out” and guaranteed that it will drop the applications. “If they follow through, as we believe they will, we're satisfied,” she said.Look, language is important, and perhaps some of the most important language we have is that expended in the service of civil rights. Whatever position you might have on LGBT rights, it simply doesn't make sense for members of their community to lock up advocacy language. And the fear that leads some to try, the fear of the language being locked up by a party without their interests in mind, means at the very least that some tweaking is needed in the law.