Via Randy Ray: Patent trolls

Matt Yglesias calls attention to the story about a basketball player who has "trademarked" his eyebrows that are connected, leaving no empty spot above his nose link here.

Actually he seems to have trademarked the use of "unibrow" in several catch phrases. Davis told CNBC that he trademarked the phrases "Fear The Brow" and "Raise The Brow" earlier this month. "I don't want anyone to try to grow a unibrow because of me and I'll say it: Fear the brow!"

Matt adds, "Of course having a unibrow is not, in fact, unique; it's just somewhat unusual. Meanwhile, it turns out that five games into his remarkable run last season, the D.C. law firm Arent Fox swooped in to help Jeremy Lin trademark the phrase Linsanity. "

How can we top this nonsense? I am guessing it will happen soon.

I first saw this story when it appeared on Matt Yglesias Moneybox blog on May 22. It has since been taken down, but you can Google the subject ("Oklahoma State University tries to patent a steak") and see that similar stories have been picked up by a lot of echoes.

Originally Matt Yglesias was joining the rest of us who cite ridiculous examples of patents and copyrights. In this one, he found that Oklahoma State University had applied for a patent on a cut of steak, or more exactly, how it is butchered.

It is not clear whether the patent will be denied, but one can no longer be sure. As Matt asks, how would this not be like other business or software patents? Such stretches have not proved beyond the capacity of the Patent and Trademark office to overcome its renowned reluctance to seek fees and constituent support.

But the thought also occurred to me that the University is enjoying so much publicity that it should continue its application or appeal any adverse finding just for the public attention.

I missed one IP story in this issue of The Economist. Louboutin is suing Yves Saint Laurent for infringing it trademark by producing high-end women's shoes with red soles link here.

The extremes of IP law keep getting nuttier and nuttier. What shade of red is it trying to copyright? Would pink cross the line? How about reddish purple? Anyway, sue and YSL may just fold its tent and go away.

From the NBER Digest:

COUNTERFEITERS: FOES OR FRIENDS? Yi Qian

Counterfeits ... steal demand from low-end authentic products, but [have] positive spillover effects for high-end authentic products.

---

In fiscal 2009, the U.S. Customs and Border Protection seized more than $260 million worth of counterfeit goods, with counterfeit footwear accounting for 40 percent of the total seizures. Counterfeit footwear has topped the seizure list of the customs service for four years. How does the existence of such counterfeits affect the sales of authentic products?

In Counterfeiters: Foes or Friends? (NBER Working Paper No. 16785), author Yi Qian analyzes product data from Chinese shoe companies over 1993-2004. She can study the impact of policy changes, such as the 1995 change in government enforcement efforts in monitoring footwear trademarks in China. That change had different effects on counterfeit entry for branded companies with varying degrees of closeness to the Chinese government.

Qian finds that counterfeits have positive advertising effects for the brand of shoes they copy. However, they have negative substitution effects for the authentic products, driving buyers away from the authentic shoe to the counterfeit one. For sales of high-end authentic products, the positive advertising effect dominates the substitution effect. For sales of low-end authentic products, the negative substitution effect outweighs the advertising effect. All of the effects last for a few years before leveling off. And, these different effects for different products reinforce incentives for authentic producers to innovate and to move upward in the quality portfolio. Finally, after the entry of counterfeiters, market shares for the higher quality products increase while those of the lower end products decline.

Qian tests these results by conducting some surveys and finds similar effects regarding the purchase intent of high-end, medium-end, and low-end branded products. Her subjects' responses suggest that counterfeits signal brand popularity, at least to some consumers. Counterfeits thus appear to steal demand from low-end authentic products, but their presence has positive spillover effects for high-end authentic products.

--Lester Picker

link to the paper

"By definition, intellectual property includes the words, images, and sounds that we use to communicate, and the courts are strongly admonished not to 'indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process'."

Wise words indeed. They come courtesy of the Honorable Paul L. Maloney, a U.S. District Judge in Michigan who wrote the above line (partially quoting previous cases) in conjunction with this trademark dispute here [PDF link]:

http://ia600305.us.archive.org/26/items/gov.uscourts.miwd.65061/gov.uscourts.miwd.65061.46.0.pdf


Unfortunately, large segments of the IP legal community haven't gotten the message. Witness this recently filed case here [PDF link]:

http://www.courthousenews.com/2011/05/12/Media.pdf

Andrew Cohen over at the Atlantic has a good primer on the important argument taking place this week at the Federal Circuit Court of Appeals:

In a closely-watched oral argument Monday at a federal courthouse in Washington, the core questions of the case read like scripts from a college philosophy exam: are isolated human genes and the subsequent comparisons of their sequences patentable? Can one company own a monopoly on such genes without violating the rights of others? They are multi-billion dollar questions, the judicially-sanctioned answers to which will have enormous ramifications for the worlds of medicine, science, law, business, politics and religion.

Even the name of the case at the U.S. Circuit Court for the Federal Circuit -- Association of Molecular Pathology, et al. v United States Patent and Trademark Office, et al -- oozes significance. The appeals court judges have been asked to determine whether seven existing patents covering two genes -- BRCA1 and BRCA2 (a/k/a "Breast Cancer Susceptibility Genes 1 and 2") -- are valid under federal law or, instead, fall under statutory exceptions that preclude from patentability what the law identifies as "products of nature..."

Read the whole thing here:

http://www.theatlantic.com/national/archive/2011/04/nature-vs-nuture-the-continuing-saga-of-the-gene-patenting-case/73359/

(via George Leef) What will we do when every word in the English language is trademarked?

From the Wall Street Journal:

Apple sued Amazon.com over its use of the phrase "App Store," accusing the online retailer of trademark infringement.

Does Apple also own the words "app" and "store"?

Trademark suits can often be rather silly and highlight the high legal costs of maintaining sanity. This week-end's press gives us two nice examples.

PennLive.com reports that US "chocolate" maker Hershey is suing competitor Mars because the color scheme of its new Dove candy is too similar to the existing Reese candy. If you follow the link, you will notice that the two wrappers do not look alike at all. The point of contention is about the color choices: orange and various shades of brown. Mind you, this is about chocolate, which usually comes in various shades of brown...

The Daytona Beach News-Journal reports that a NY-based company has trademarked "Daytona Beach Bike Week", a popular event in Florida, and is now pursuing souvenir makers and sellers in Daytona Beach.