Trademark in its final throes?

No, not really, but it does sound pretty bleak:

Limited Brands SVP and Associate General Counsel Carol Matorin, who represents Victoria’s Secret among other brands, summed up the Sisyphean challenge of policing trademark violations in the midst of what she called “a great ocean of infringing materials.”

“It’s like trying to empty the ocean with a pail,” she said on a panel discussing the topic. “Can you even identify the perpetrator or whoever you’re trying to go after? There’s always been too much to go after in its entirety.” And each day brings more infringement than the last.

I dunno, I’d really like to see that Community Mark idea given some legal scrutiny, from the standpoint of creating doctrine that reflects the current social or economic needs of a society.

We’ve got trademark, which is economically unenforceable, patents, which are the DRM of genius, and copyright which are the modern shackles of the scamp-as-artist.

Hell, why don’t we just throw out the baby with the bathwater and come up with something unpatently original?

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Author: Chris Messina

Product guy, friend to startups, inventor of the hashtag, proponent of bots and conversational apps; Xoogler and X Uber.

3 thoughts on “Trademark in its final throes?”

  1. I’m not sure what you mean by having “[the] Community Mark idea given some legal scrutiny”, given that (as I understand it) the whole point of the Community Mark idea was that it existed outside the context of any legal framework, with enforcement done solely through non-legal mechanisms (e.g., shaming, boycotting, etc.).

    Perhaps you’re referring to modifying the legal concept of trademark to reflect some of the spirit of the Community Mark idea? This seems more reasonable, and I can think of some ideas that might be worthwhile. First and foremost would be eliminating or minimizing the requirement on a trademark holder to actively protect their mark; this requirement is what drives a lot of what people see at nit-picking behavior on the part of trademark holders.

    If trademark holders don’t need to be in fear of losing their marks due to insufficient zeal in trademark enforcement then I think they could view enforcement as more of a risk management exercise: As with copyright infringement, credit card fraud, and similar areas, it is impossible to eliminate perceived violations. The goal instead should be to try to keep violations from rising to a point where serious consequences arise for the trademark holder and/or users of trademarked goods and services. In practice this could mean doing selective enforcement based on factors such as whether a particular perceived trademark violation involved intentional fraud and, if so, to what extent the trademark holder or others suffered damages (monetary or otherwise).

    Thus, for example, schools painting Disney characters on their walls (real example) would be spared the wrath of lawyers, while criminal enterprises running multi-million dollar operations selling counterfeit Disney products would be pursued with all means possible.

  2. Frank — I would agree with you that that’s the spirit of what I was saying. I do think that I was thinking about a “legal nod” making the Community Mark idea more appealing to folks worried about risk mitigation, as you say, but I think, in hearing your argument, I would agree with you that adjustments to existing law would probably suffice for my purposes.

    However, to loosen the degree to which trademark holders are responsible for enforcement, you’d have to equally increase the rigor of the definition of infringing acts — so that it would only be those instances where there is a criminal or intentionally harmful goal behind abusing someone’s mark. In particular, we’d have to make sure people ripping off Firefox by selling it as a “bundle” for $30 would be preventable under such adjustments.

    All the same, the Community Mark concept is only a prototype — and a concept that can be used, but rightly as you suggest, points out that there need be more latitude in choosing the degree to which one must actively enforce their brands and trademarks.

  3. “However, to loosen the degree to which trademark holders are responsible for enforcement, you’d have to equally increase the rigor of the definition of infringing acts…” I agree. I think this would be a worthwhile trade-off from society’s point of view: It could preserve the benefits of trademarks for both holders and others, while reducing the waste of resources inherent in overly-zealous trademark enforcement.

    Note that this proposed trade-off is somewhat analogous to the idea proposed by Jessica Litman for copyright: balance the extended benefits granted to copyright holders (e.g., longer copyright terms, DMCA-style restrictions on reverse engineering, etc.) by redefining copyright infringement to be limited to actions involving unauthorized commercial exploitation of copyrighted materials. (See her book “Digital Copyright”, chapter 12, “Revising Copyright Law for the Information Age”.)

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