|
About Chris BallAs of 2011, I am an articling student (i.e. lawyer trainee) at a major Canadian IP law firm based in Ottawa, Ontario. I completed my law degree (2010) and an undergraduate degree in Engineering Physics (2005) at Queen's University in Kingston, Ontario. I was Articles Editor (2009-2010) of the Queen's Law Journal. |
But what is "ownership"?
(untitled comment)
Color trademarks
There is no inherent bar to trademarking a color, though as you might expect, the USPTO doesn't go giving out trademark registrations for colors willy-nilly. The color can't be functional or merely decorative, and you generally have to show to a high standard that your use of the color is distinctive and well-known./div>
Broad exceptions > flexible exceptions
Even as it is, Canada's existing system of fair dealing still has most of the same uncertainties as the U.S. system, so making it more "flexible" probably couldn't do any harm. But it might not do much good either, if users can still be threatened with a lawsuit. It would be much better to just have well-defined, broad exceptions to copyright, so that people can engage in all sorts of reasonable uses without any worries that they are going to get sued./div>
Oranges and Lemons
The same apparently goes for mint and caraway, but you'd never get me to try a caraway candy no matter what colour it was./div>
Not public = not defamation
TM law is about unfair competition, not consumer protection
While I agree with you in the end, I disagree with your characterization of trademark law as being intended for consumer protection. Preventing consumer confusion is a crucial part of it, but I would say that is ancillary to the true purpose of trademark law, which is to prevent unfair competition between businesses. As with any law though, a lot of businesses treat trademark law as an instrument for pursuing whatever end they want. So you get abuses like companies trying to claim that a generic term is their trademark to prevent other companies to use the term (which wouldn't really be unfair competition because consumers aren't confused -- in fact, consumers are potentially confused when a company claims exclusive rights to the term), or companies trying to use their trademarks to stifle free speech (which, again, wouldn't be unfair competition unless it confuses the public about the source of the product or service).
The history of how the law has developed is very clear on this. We have lots of laws intended to protect consumers, but trademark law is merely intended to protect businesses from other businesses that might steal their customers by confusing them./div>
Beer
Not that useful
There are still opportunities to take advantage of such patent free zones, and I'm surprised more businesses don't take advantage, but they aren't the panacea you might think.
Also, I wonder about the international and trade-related aspects of this decision. Sounds like it probably violates TRIPS and/or the Paris Convention. Not that the U.S. is exactly known for holding up its end of treaties. (Yes, I'm a bitter Canadian.)/div>
Oops
Push vs. Pull
Still, if this ever does make it into regulation, I think there's a serious ground to challenge it based on freedom of expression.
/div>Dragon's Den
Limitations on trademarks
Now that's not to say that trademarks aren't often abused by rights-holders making unjustified threats, but I don't think registering and using a mark like this inherently abusive./div>
Incentives
14 days is better than forever
Sounds like normal discovery to me
Juries
I for one would love to see patent trials carried out by a jury of "persons of ordinary skill in the art" — a true jury of the patentee's peers, if you will. Good luck trying to find six PhDs in organic chemistry to serve as jurors though!/div>
Competition Law vs. IP
A journal editor's perspective
Most of the submissions end up being published somewhere, as they should be--heck, most of them are already posted in some form on SSRN before we even get them--so the traditional system of peer reviewed journals doesn't really serve a gatekeeper role per se. Rather, the journal's role is mostly editorial (i.e. making the papers the best that they can be) and curatorial (i.e. bringing attention to them). This, I think, is an important value-added service.
So while I agree that the peer review that goes on after publication is more important than the traditional process, this realization hardly heralds the end of traditional peer review. That said, it's probably important for people to be aware of the difference between pre- and post-publication peer review, and not assume that because a paper has been published in a reputable journal that it has been thoroughly vetted for correctness.
/div>Maybe it's the name (as wiwa)
Techdirt has not posted any stories submitted by Chris Ball.
Submit a story now.
Tools & Services
TwitterFacebook
RSS
Podcast
Research & Reports
Company
About UsAdvertising Policies
Privacy
Contact
Help & FeedbackMedia Kit
Sponsor/Advertise
Submit a Story
More
Copia InstituteInsider Shop
Support Techdirt