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?
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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.
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Ben
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?
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Revenge of the Bean Counters!
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Re: Revenge of the Bean Counters!
If government was really 'pro-business', it would eliminate copyright, patent and trademark legislation and let companies duke it out.
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Re: Re: Revenge of the Bean Counters!
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Re: Re: Revenge of the Bean Counters!
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.
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Mike Row
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Re: Mike Row
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There is SysCo and Cisco.
SysCo is a food distribution company, internal infrastructure.
When is Y like an I. When is I like a Y.
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So...
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.
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Multiplying Problems
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.
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hope this isn't copyright infringement...
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Case in point;
http://p2pnet.net/story/12469
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.
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Protection from Criticism
Corporate rights trump free speech.
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pervert
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