Fixing Trademark Law
from the is-it-time? dept
Over at the Citizen Media Law Project, Kimberley Isbell, is discussing an article she recently wrote on how to fix trademark law, which is a worthwhile read. The article mainly focuses on "ambiguities" found in trademark law, with the idea of settling some of the issues and making the guidelines more complete. Specifically, she hopes for a more clear delineation of what "fair use" means in trademark law, a better understanding of what defines "use in commerce," and adding a "safe harbor" to cover trademark, since it's the loophole that's left out from the current DMCA and CDA safe harbors that protect third parties from liability online in other issues (such as copyright and defamation).On the whole, I think it's a good discussion, but I'm not sure I agree entirely. While initially codifying fair use within trademark law sounds like a good idea, my recent conversation with William Patry may have changed my mind on that topic. He pointed out that codifying fair use in copyright law ended up doing more to narrowly limit how fair use was applied, rather than allow judges to make a more expansive and reasonable view of what constitutes fair use. He pointed to the writings of Pierre Leval on fair use, which should be required reading for anyone looking to understand fair use. Given an attempt to codify fair use in trademark law, we might end up with the same set of limitations. While having more clearly defined lines may seem like a good idea, it also provides less flexibility, and more of an opportunity to fence in fair use, rather than letting it adapt as necessary.
On the second suggestion, concerning "use in commerce," we agree that current definitions are all over the map, but again, I wonder if trying to codify it via Congress leads to more problems than solutions. Any attempt will almost certainly screw up unique cases, leading to trouble down the road. Finally, I do absolutely agree on a safe harbor need in trademark, especially as those looking to bring copyright and defamation lawsuits have recently been bending over backwards to sneak in a trademark claim as well to try to avoid the other safe harbors.
As for the improving trademark law in other ways, I would think that the best way to do so, would be to ditch the (relatively) recent concept of "dilution" as trademark infringement, and focus on the real purpose of trademark law: to prevent consumer confusion and "passing off" of one good as made by someone else. As such, I've long been a big proponent of the "moron in a hurry" test that actually has been used in some cases (i.e., "would a moron in a hurry confuse this product and believe it was made by or endorsed by the trademark holder"). Focusing on just that test as a determination of trademark infringement would likely solve many of the common problems with trademark law -- including, most likely, removing the need for either a codified fair use of "use in commerce" clause. Instead, you just apply the moron in a hurry test and toss those lawsuits that wouldn't confuse said morons.
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Filed Under: dilution, fair use, safe harbors, trademark law, use in commerce
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Moron in a hurry or...
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Re: Moron in a hurry or...
What would Congressmen be hurrying towards? Must be a firesale on DC hookers...
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Re: Re: Moron in a hurry or...
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Re: Re: Moron in a hurry or...
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problem has never been codifying it
codifying anything = a how-to and/or what to get around to achieve what you want because it is too narrow a scope.
The issue is that judges are very hesitant to change precedents and are even given instructions accordingly. specifically the laws that congress establishes with wanton disregard for rights or the constitution are left untouched/avoided. Everyone says judges can check congress, but they really don't do it very often and/or blatantly avoid it. it's a known tenet of law which circulates problems and gives congress all of the power.
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Too many lawsuits
The reason that's a problem is because these days a lawsuit can be so incredibly expensive (especially when one party has tremendously more money than the other) that far too many cases get settled without a trial in the trademark holders' favor even when the defendant is clearly in the right. (Usually it's as quick and simple as, "Grr, I'm gonna sue you!" "Eep! never mind, I'll just avoid your trademark like the plague!)
That is, right now aggressive trademark holders tend to win by default, without any expensive trials (which they would probably lose, but nobody they threaten wants to test that when the law is so vague).
If the law were more clear, then even a moron in a hurry could tell that many of these cases have absolutely no basis in law.
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IE:
"fair use is acceptable and includes, but is not limited to
Educational use
Making a political point
up to 30 second clips
etc...
The purpose of fair use is to promote the progress and any actions that do so are allowed. A judge may choose what activities constitute promoting the progress and which ones don't based on the context of the situation but the above activities listed are always considered to promote the progress."
Again, HOW the laws are codified is also important.
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Re:
For instance, when Obama has those secret ACTA meetings where only rich and powerful entities are allowed and the public are not. Of course the laws that result will benefit the rich and the powerful at the expense of society. DUH, this isn't rocket science it's common sense.
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Trademark law needs help
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Re: Trademark law needs help
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Trademark vs. patent and copyright
Further, it has accumulated manifestly unjust accrustations such as antidilution provisions, which have nothing to do with the valid anti-fraud related underpinnings of trademark law.
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Sect. 230 & Anti-SLAPP Should Include Trademark
1) Change section 230 to explicitly include save harbor against trademark claims.
2) Pass anti-SLAPP legislation in all states and perhaps a federal anti-SLAPP law.
3) Fine both the plaintiff and their attorneys for bringing SLAPP cases. Fines should be progressively larger for repeat offenders, say ten times of the second offense and a hundred times the base fine for the third. Both the second and third offense should result in sanctions for the attorney. Perhaps a three month suspension for the second offense, a one year suspension for the third, etc. would be appropriate.
Ronald J. Riley,
I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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Re: Sect. 230 & Anti-SLAPP Should Include Trademark
All three of those are excellent suggestions.
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There is more we would agree on.
There are plenty of other issues where I agree with you Mike.
But what little time I have to devote to this forum is taken up dealing with all the anti-patent drivel.
It is bad enough that I and other inventors have to fight all the disreputable transnational corporate crooks without having to deal with those who should know better promoting the patent pirates agenda.
Inventors drive new wealth creation. You cannot have what you call innovation without the work of those who actually invent something.
All businesses depend on new wealth creation, even those who are not creating new wealth themselves.
Transnational companies are doing their best to turn America's patent system into a kings sport in order to stop upstart start companies from getting the upper hand. Where else besides America can someone take on the big companies and win?
Ronald J. Riley,
I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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