Shattering pyrex To Show A Massive Weakness In Trademark Law
from the turn-up-the-heat-and-it-shatters dept
Trademark at its best is a means to protect the public and consumers. A brand may be associated with a particular product and a particular level of quality. Consumers seeking exactly that product and quality will seek that brand; Trademark laws ensure they're getting the real thing.Take Pyrex: it's heat-resistant glass, what we used in chemistry lab in high school, what you buy if you're cooking and baking with a lot of heat changes. Except it's not, as this highly amusing video demonstrates (start watching at about 28:00):
Trademark treats brands as "property," controlled exclusively by "owners," who can buy and sell them:
In 1998, Corning divested its consumer products division which subsequently adopted the name World Kitchen, acquiring the rights to the pyrex® trademark. The company introduced clear tempered soda-lime glass kitchenware and bakeware under the pyrex® name. linkAccording to Wikipedia, Corning's responsibility extends to this formality:
When trademarked as PYREX® (all UPPER CASE LETTERS plus, in the USA, a trademark notice comprising a capital “R” in a circle) the trademark includes clear, low-thermal-expansion borosilicate glass used for laboratory glassware and kitchenware, plus other kitchenware including opaque tempered high-thermal-expansion soda-lime glass, pyroceram, stoneware, and metal items See. e.g., http://www.amazon.co.uk/s?index=kitchen-uk&field-keywords=pyrex. European trademark usage differs from American and the encircled "R" is not present on European PYREX items.I don't think this passes the "moron in a hurry" test, but it's not put to the test because Corning isn't having a dispute with a competitor. Rather, they are misleading consumers, and Trademark law as it currently exists offers no remedy.
When trademarked as pyrex® (all lower case letters plus a trademark notice comprising a capital “R” in a circle) the trademark includes clear tempered high-thermal-expansion soda-lime glass kitchenware, plus other non-glass kitchenware, made by World Kitchen. See, e.g., http://www.amazon.com/s/ref=bl_sr_kitchen?node=1055398&field-brandtextbin=Pyrex
Consumer Reports did a video about glass bakeware exploding, but didn't address the Trademark issue at all:
In his book Against Intellectual Property, Stephan Kinsella argues that Trademark should protect the rights of consumers. He suggests Trademark suits should be brought by consumers against monopolists, not by monopolists against competitors. I have no answers, and like I said I'm not a Trademark abolitionist. I certainly don't want to increase the reach of Trademark law; I generally don't think more lawsuits are an answer to anything. But it's a good story to show that Trademark isn't as functional as we'd like it to be.
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Filed Under: consumer protection, pyrex, trademark
Companies: pyrex
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All About Protecting Consumers
/bacon-lance
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UFB
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Re: UFB
Trademarked!
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Re: Re: UFB
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Excellent Insight
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the humor of PYREX and pyrex
none of the pyrex sold in the us is PYREX anymore (borosilicate). Not since the 70's. The european version with borosilicate is named "Marinex" and....not made from Pyrex.
Nice, huh.
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Re: the humor of PYREX and pyrex
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Did you miss the bacon lance?
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Passing off inferior products
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This happened to me
Luckily, I was not injured, only extremely surprised, and confused, until I googled "pyrex shattered" and found that what I thought was Pyrex was in fact "pyrex"
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And, please, there is no "moron in a hurry" doctrine in U.S. trademark law. I wish you guys would stop using it. Talk about confusion or initial interest confusion or something that actually exists.
Trademarks identify producers, not products. So the word "PYREX" indicates the company that made it. There is no confusion, as that word is used in trademark law, when someone sees "pyrex" and thinks they're getting borosilicate glass. Confusion means you think the source is different, not the product. Confusion would be if you saw "pyrex" and thought you were getting something from Corning but really it came from somewhere else.
You're simply confused about what confusion is. Ha!
Your argument that it's dangerous when people think they're getting one kind of glass and not another is not a trademark issue since there's no confusion about source. So your point that "Trademark law as it currently exists offers no remedy" misses the point entirely. Of course trademark law offers no remedy. This isn't a trademark issue. There are other laws that protect consumers from dangerous products.
I'm sorry, but this article is just idiotic. Is there any branch of IP law that you can't completely misconstrue?
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Otherwise, what you see as a mistake, I see as the main point of the argument: The premise is that the purpose of trademark law (in part) is to protect customers from potentially inferior products that are presented in a way that confuses the consumer about their origin.
Given this premise, techdirt is saying that it is inconsistent for the law to allow companies to use trademarks in a way that causes consumer confusion.
It is a pretty straightforward if-then statement: If part of the purpose of trademark regulation is to avoid dangerous confusion for consumers, then trademark law should regulate trademark uses by the trademark owner that may cause that same type of confusion.
To this, you might respond, "But it was only ever the purpose of trademark law to regulate the actions of those who do not own the relevant trademark. The confusion is seeks to avoid is the confusion created competitors, not the trademark holder"
Perhaps this is true-- I am not familiar with that body of law. However, if this is your counter claim, then again I would say that this is the exact argument of techdirt. The underlying premise is not, "dangerous confusion caused by a competitor is bad", but instead, "dangerous confusion is bad."
Therefore, it does not matter if the confusion is caused by a competitor or the trademark owner. Even if trademark law does not currently allow for regulating trademark usage by the owner, in order for it to be logically consistent with its original purpose, it should be concerned with any use of a trademark that could cause dangerous confusion.
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Re: Re:
So the trademark is PYREX for glass, which identifies the source, Corning. If Corning decides to change the formula for their glass, and someone buys something labeled as PYREX thinking they're getting the old glass formula, that's not "confusion" in the trademark sense. They are still getting the glass product made by Corning, so they haven't been confused as to source.
Trademarks are source identifiers. Confusion means confusing the source, not the product.
If Coke changes their formula without telling anyone and I buy a Coke thinking I'm getting the old formula, I'm not confused as that term is used in trademark law since I got the drink made by the Coca-Cola Company.
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I bet you would be slightly pissed/confused if you bought a Coke and the contents were actually Sprite (lemon-lime, like the corollary?). But your argument here is just because these are both drinks made by the Coca-Cola Company there shouldn't be any confusion.
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TM protects indications of source and seeks to prevent confusion of source, affiliation, or sponsorship. But we also know that consumers don't even need to actually know the source of the good for it to be a valid trademark. Consumers may not know where "Ajax" comes from, but they expect a consistent product and quality whenever they buy that brand.
TM law assumes that a product under the same name from the same source will be the same product. The mark as an indication of source is a proxy for a given quality or a particular consumer expectation. When the quality changes, it's primarily the mark owner that is harmed, so the owner has the incentive to maintain that quality.
But when a TM is registered for a confusingly similar product that differs in a material way that consumers cannot determine at the point of sale, that's a "gotcha" point of confusion that TM simply doesn't prevent.
There's nothing in TM law itself to prevent Apple from selling a version of the "iPhone" that looks the same but requires a $1000 licensing fee to operate as a phone. But the average consumer would expect every "iPhone" to be materially the same, or at least to advertise its differences.
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For my own part, although I agree with TD's general argument, I wonder if other bodies of law might not be more appropriate to this sort of issue. For example, if General Mills decided to weaken the Cheerios brand by replacing substituting the current package contents with Fruit Loops while leaving the packaging the same, that should be their choice. However, if they wanted to make a Cheerios brand box of Moth Balls, that would be both damaging to their brand and a strong potential risk for confused customers, and should not be allowed, and indeed the FDA might have some jurisdiction over mandating corrective action.
With this Pyrex case, I'm not sure what that other regulating agency or body of law would be, but neither am I sure that Trademark law is the best place for it either. What I do believe is that the inconsistent use of the Pyrex mark is irresponsible.
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It's certainly not an issue for TM law, but it does point to an interesting difference between the law and a layman's experience of the law.
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This is why you always get stuff wrong on copyright too. You're so focused on law and order and following the letter of the law, you immediately misconstrue any higher level argument about how the letter of the law fails to meet with the intent of the law.
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I think this A.C. has it right.
Remember the "New Coke" fiasco in the 1980's? I don't. But we're all familiar with the story: Pepsi is outselling Coke, Coke tries to regain market share by introducing a newer formula that tastes more like Pepsi, huge backlash, Coke reverts to old formula, Coke Classic is back in business.
Imagine if there were no trademark: Pepsi could sell its formula deceptively as Coke and the real Coca-cola Company could claim it had nothing to do with it, and there would be confusion over who's telling the truth, because Pepsi could legally do something like that. Or imagine the inverse, where Coca-cola sells its formula deceptively as Pepsi to attempt to gain back market share, and Pepsi - though claiming it had nothing to do with it - suffers because people think its popular formula has changed even though Pepsi had nothing to do with it.
With Trademark, Coke can't market its products as Pepsi and vice versa, so we know the source of the formula changes: Coke changed its formula, and thanks to a massive backlash, changed back.
Now, the Pyrex issue isn't exactly the same, since changing the chemical composition of glass is not as noticeable as changing the formula for a soft drink (not to mention Coke had advertised their formula change and Pyrex didn't). However, the substantive interests of the consumer are protected because we now know, thanks to the internet, that this is the doing of Pyrex itself, and not some knock-off brand. It is a self-inflicted wound rather than a counterfeit stabbing. Thanks to trademark, we now know that we should avoid the real thing because the trademarked brand is itself tarnished by cost-cutting measures rather than the result of a knock-off competitor. This could be remedied by taking our money elsewhere (if Pyrex isn't the only brand sold in your neighborhood).
Trademark may not address the issue of the brand hurting itself rather than counterfeiters hurting the brand, but that's why we should have competition, amirite?
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Re: Re:
This is why you always get stuff wrong on copyright too. You're so focused on law and order and following the letter of the law, you immediately misconstrue any higher level argument about how the letter of the law fails to meet with the intent of the law.
LOL! That's your response? Can you not even admit that Nina has displayed an abysmal understanding of the law? I know, I know. You'll defend her to the death, never admitting even the possibility that she got anything wrong.
Let's play your game, Mike. Explain how PYREX changing the type of glass it uses goes against the intent of trademark law. I'm more than happy to see this debate all the way through until one of admits the other is right. I know you won't play though. You'll run away as you always do when called out for your idiocy. I won't hold my breath waiting for you to answer.
And, seriously dude. Having Nina Paley write articles about trademark law is really fucking weak. At least you know enough about to sound plausible. She just sounds like a complete idiot, and that makes you look like an idiot for letting her post this nonsense on your site. LMAO!
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Science question
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Re: Science question
Clear enough?
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Science question
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You have too much faith in consumers and underestimate corporate marketing and consumer manipulation. These are the same people who vote for politicians who actively work against their interests and they've been voting this way for over a hundred years. Consumers can determine the fate of a company that releases inferior products, but sometimes that fate is to let them go on producing the inferior products.
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... Well, that's what you're doing when you express a lack of faith in consumers and a great deal of faith in the nefarious marketing power of corporations.
There are good reasons why voters vote poorly. It takes effort to be informed, and why bother when you have 1/200,000,000 of a say in who the next President is? Public choice economists call it "rational ignorance."
Doesn't apply to a baking dish. I have 100% control over which brand I buy, and I own 100% of the consequences of choosing poorly (or using it improperly.) It's not rational to remain ignorant in this very different case.
So, like I said: Quit calling me an idiot.
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Mike I think you're off base here
"Pyrex" lab instruments are indeed borosilicate glass. They are quite fragile but have a superior resistance to thermal shock compared to soda lime glass.
"Pyrex" baking dishes have been made by World Kitchen (a US company and also manufactured in the US, despite what you'll see in a common chain email) for 15 years, and World Kitchen has claimed that they did NOT change the recipe and that at least some % of the older Corning-made Pyrex baking dishes are also tempered soda lime glass.
Tempered soda lime glass is significantly more resistant to physical shocks-- bumps, drops, etc-- than borosilicate. It is true that its resistance to thermal shock is inferior, but it's also been claimed that the gains in physical shock resistance are far greater than the losses in thermal shock resistance.
I have been using tempered soda lime baking dishes for many years, as have hundreds of millions of people, without incident or problem.
The REAL problem is a lack of education, and perhaps a lack of clear and visible product labeling, regarding proper use and hazards associated with glass bakeware. People simply don't realize that you cannot do things like grab a super heated baking dish with wet oven mitts, or set a super heated dish directly on a really cold or wet granite countertop, or take a dish from the freezer directly into the oven or vice versa.
I often agree with you but in this case I do not think there is a problem with trademark here. Wouldn't this be like McDonald's getting blamed because they sold both hamburgers and salads under the "McDonalds" trademark which confused people? Hardly. The problem is lack of consumer knowledge/education and not trademark.
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Re: Mike I think you're off base here
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Re: Re: Mike I think you're off base here
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Re: Re: Re: Mike I think you're off base here
Personally, I think Techdirt has some responsibility to let readers know who wrote what articles. Likewise I think Corning has some responsibility to sell genuine pyrex under the pyrex brand. Do I think we need more laws to enforce this? No. But the comment I responded to blamed consumers for being sold soda lime glass as pyrex. I found this ironic.
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Re: Re: Re: Re: Mike I think you're off base here
Trademark law, however, does deal with this problem. If "Pyrex" was found to be a generic term for heat-resistant glass, it would enter the public domain as an unprotectable synonym for heat-resistant glass. Then, if a business were to advertise non-heat-resistant glass as "pyrex", that misleading use could fall under false advertising. (A note: a mark may be deemed "abandoned" following a radical and substantial change in the underlying product, but it has to be pretty extreme and I don't think that happened here.)
But your average consumer would not have standing to challenge the "Pyrex" mark as generic. Your post notes this lack of standing and I tend to agree that expanding the ability of consumers to bring trademark-based claims is a good thing.
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Re: Re: Re: Re: Re: Mike I think you're off base here
What kind of legal action would lead to such a finding? Who would sue whom? I assume in this case, consumer advocates would have to sue Corning.
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Re: Re: Re: Re: Re: Re: Mike I think you're off base here
Genericness can also be used as a defense to a trademark infringement action. If the defendant succeeds, the plaintiff loses their rights in the mark. But your average consumer is not going to find themselves in that situation.
I am no expert in this area. I've glossed over some stuff. This is not legal advice so don't hang your hat on anything I've said.
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Re: Re: Mike I think you're off base here
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on crack
I also had a glass explosion a few months prior to reading the article. I put a pyrex saucepan full of water on a burner. Boom! Water and glass everywhere. Luckily, no one was hurt, but flying glass gets in the darnedest places.
Thanks, World Food! You've made our lives that much more dangerous!
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Genericization.
The error isn't one consumers made, it is one the mark owner made by ignoring the meaning of the brand they created.
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Re:
Again, consider if an unlicensed seller were passing off soda lime glass as pyrex. That would become the poster child for stricter Trademark enforcement, and you can bet the "endangering consumers" argument would be front and center.
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Re: Re:
The difference is that the unlicensed seller is fraudulently damaging the Pyrex® brand in your hypothetical example and in this example, Pyrex® is weakening their own brand through cost-cutting measures. The former is an example of one damaging another and the latter is an example of one damaging itself. When a counterfeiter damages a well-regarded brand through making knock-offs which get confused with the well-regarded brand, the well-regarded brand and its reputation are damaged and that is out of the well-regarded brand's control. When the well-regarded brand damages itself, it has nobody to blame but itself if its consumers choose a different brand.
In this instance, the consumer is protected because we know that the brand Pyrex® is damaging its own brand and not due to some nefarious third-party looking to make a buck.
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A Little Clarification
The mark owner can:
- License it to any other company or person, including to multiple ones at the same time, which means that trademarks do _not_ identify the producer of a product or service.
- Use it on any product, or multiple products at once, which means that trademarks do _not_ identify the product or service.
- Can sell, give, or license it will, which means that trademarks do _not_ ensure any sort of continuity in time with respect to owner.
- Can change the products at will, or change which products are sold under the trademark at will, which means that trademarks do _not_ ensure any sort of continuity in time with respect to product.
PS: I'm quite upset with trademarks in general. This post was more to show how messed up the system is rather than support it.
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Pyrex
We are now looking for a alternative to the Pyrex we now use in our Kitchen.
Now that I know this, I cannot in good conscience or, from a legal standpoint subject my employees to a known safety hazard.
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Re: Pyrex
And this is why even though trademark doesn't cover the issue of brands using inferior products without informing the consumer, it doesn't need to, because the truth will come out eventually thanks to the internet. The brand becomes damaged for reasons unrelated to trademark, but since we know the source thanks to trademark, we now know where not to take our money.
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OMSI?
I remember using a rival compiler called NBS Pascal about that time. Unfortunately it was buggy and unsupported (though it was fun to hack the source code). The Powers That Be decided that the compiler for “official” (i.e. course) use would be OMSI. I didn’t like it, because it didn’t compile directly to machine code, but generated assembler source, which then had to be fed through its own custom assembler to generate object code (why did they bother?). So it was a whole lot slower than the NBS compiler. Not to mention we didn’t seem to have source code, so we couldn’t hack it.
This was running on a 16-bit mini with, at its peak, ¾MiB of RAM, serving 50 users at once.
Kids these days...
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Re: OMSI?
Luxury! I used OMSI Pascal with RT-11, sticking to the good old 56KiB of RAM. On the upside, it was all mine; none of this multiuser stuff.
I really liked it, except for that one time I discovered it was trying to use one my device registers as a temporary variable.
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So compete!
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Pyrex = Junk
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crummy pyrex
Pyrex today is a crummy imitation of the original. The large bowl was in the cabinet with three smaller bowls nested inside. My wife heard a loud sound of glass breaking in the kitchen, opened up the cabinet and found this! That bowl was NEVER in the oven. The ONLY thing it was used for was to make salads. I don't believe it was ever in the dishwasher, and if it was then only a few times. This is a very new set of bowls. Thanks a lot Corning for selling off a great brand to MORONS!
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pyrex alternatives
I wish this article had mentioned of anyone else makes borosilcate glass products.
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Hmmmm
The substitute is much cheaper.
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I have never seen it, so I don't know what points it makes, and I
have no opinion about them. However, since "intellectual property"
is a misguided overgeneralization, it is just as foolish to be
"against it" as to be "for it".
See http://www.gnu.org/philosophy/not-ipr.html for more explanation.
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