26 January 2012

Just another (bite-size) bill

One of the remarkable things about the anti-SOPA blackout is that laypeople actually understood the issue. The hardest thing about intellectual property is getting people to care; for most the subject is hopelessly abstract. With that in mind, I've tried to make these bills as compact and pointed as possible: they're directed at specific injustices that I hope most people can understand.

Today's topic is trademark, often conflated with copyright, but whose purpose is entirely different. While Copyright exists to give artists the right to exclusively derive profit from copies of their work, Trademarks are meant to protect consumers from being sold counterfeit goods—but they have metastasized into a variety of strategies that have nothing to do with protecting the consumer and everything to do with muscling out competition by intimidation. 

Trademark Bill #1

Noting that the use of common words, sayings, phrases, folk characters, colors, and other aspects of shared culture is an effective means to produce goodwill for a product or service, these elements are ineligible for trademark, as their meanings exist prior to said product or service.

Also known as the "You Can't Trademark Brown Act." I used to work on a website about cars; there was a feature on the site called "Pickup Lines" which was about trucks. The site received a C&D letter from a man claiming to own a trademark on the term "pickup line." I think we eventually put in a hyphen or something, but the point here is this is insane. Trademarking "pickup line" makes as much sense as trademarking "Tuesday." If you want to use a common word or phrase, you should feel free, but you should not have exclusive rights to its use. (Witness the "Eat More Kale" fiasco.) While we're at it, you have every right to build an association with a color or set of colors and your product, but a color is not really something you invented.

Trademark Bill #2

Being resolved that while trademark exists to protect consumers from confusion over the origin of products or services, it is not trademark's responsibility to pre-emptively determine which product or service is connected with a proper name.

AKA the "My Name is McDonald, Too, Act." One would think that there would be nothing more natural than to use your own name in reference to yourself, but if your name is Sears, you're pretty much screwed, because of a peculiar aspect of trademark law known as trademark dilution. In the normal course of events, if I had a company called Acme that made pianos and you had a company called Acme that made anvils neither of us would violate the other's mark because we would not be in competition with each other (except, perhaps, for the coyote market share). But in the case of "famous" trademarks (and yes, that's the technical term), special protection is given because the mark is in theory so ingrained in consumers' heads that they will assume that any product with that name comes from the famous company.

The problems with this line of thought are: 1) it treats people like idiots and 2) it's a protection of the interests of the powerful against the interests of the weak, which would seem to be an inversion of the goals of trademark. In fact, this latter issue marks a lot of what's wrong with intellectual property in general, which is supposed to protect artists, inventors, and entrepreneurs from having their work taken from them, but too often becomes a cudgel for intrenched interests. A good example of the way this principle gets abused is the veronica.org domain squabble.

Tomorrow, I wrap things up and fix Patent law forever (you're welcome).

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