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Against Monopoly

defending the right to innovate

The IP Wars

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Trademarking the Web

Steve Lohr writes that trademarking is being steadily expanded to the web link here. "For the empirical proof, look at the filings with the government for new trademarks that, put simply, are brand names," he writes. "It lies beyond putting trademarks on new businesses, Web site addresses and online logos. Now, companies want to slap a brand on still vaguely defined products and services in the uncharted ephemera of cyberspace the computing cloud, as it has come to be known."

Lohr provides several examples. Dell tried to trademark Cloud Computing and now Microsoft is trying something with the phrase Live together with another word, like Mesh, as if Live somehow made the phrase unique.

This attempt to extend the reach of trademark has not gone unopposed, since it is clearly an attempt to extend monopoly into new areas.

The IP Battlefield of the Porn Industry

It has often been said that the porn industry helps drive technological innovation (i.e., Helping to decide competing formats, etc.). Can it also help drive the legal debate over IP?

Behold the latest copyright/trademark dispute involving a gay porn film that references an Italian classic.

The response letter from the defense attorney is well worth reading.

[Hat-tip: Mathhew Heller from Courthouse news]

Tyranny of Trademark Law - Part 8 (Monopolizing Language Revisited)

Debra Opri has apparently joined the growing rank of attorneys who are smoking crack when it comes to trademark law.

Let's get one thing clear: Trademarking a phrase for general use is a flat out unconstitutional violation of free speech. Are Opri and Birkhead honestly arguing that is somebody uses the phrase “Goodnight my sweet baby Anna” in a book, film, or any other creative work, then that person must pay off Birkhead or risk being hauled into court??

Trademark serves a useful and legitimate purpose when it is used to identify a specific good or service. For instance, if Birkhead sold baby cribs with the brand name “Goodnight my sweet baby Anna”, it is perfectly legitimate to prevent other crib competitors from using that name. This has nothing to do with principles of monopoly. It is simply a necessary tool for consumer protection.

With that said however, it is insane to try and claim a general trademark over the phrase itself when it is divorced from a pre-existing good or service. At that point, it is no longer a tool to identify a commercial good, it then becomes a naked and virulent attempt to try and privatize language itself through a government enforced monopoly. Anyone claiming to be an attorney who endorses such nonsense out to be shamed out of the profession.

Coke is a legitimate trademark to identify a cola brand. Are Opri and her ilk seriously arguing that I have to get permission from the Coca-cola company if I write a book where I have a character say, “I'd like a Coke, please.”? Surely you see the ridiculous implications here. The Supreme Court has criticized this attempt to abuse trademark law by claiming it as "mutant" form of copyright protection. However, this hasn't prevented special interests from trying to re-enforce their monopoly over language and communication.

Paris Hilton trademarking “That's hot!”? Pat O'Reilly trademarking “Three-peat”?? Donald Trump trademarking “You're fired!”??? These people have simply wasted their time and money by listening to attorneys who simply don't know what they are talking about.

Meanwhile, if there are any artists out there who can demonstrate that they have published creative works using these “trademarked” phrases, please let me know. I will be happy to publicize your work on this blog and provide free legal defense if you are threatened.

Part 7 of Tyranny of Trademark law here.

[Update as of 4-2-07]: Larry Birkhead has issued a fascinating message on his webpage over at LarryBirkhead.net -

TRADEMARKS: I have never requested a trademark, signed or filled out any paperwork on a trademark relating to Anna Nicole Smith, and the saying "Goodnight My Sweet Anna Baby." The form was filled out by another individual on my behalf. The form was not reviewed or approved by me. The media is reporting that they have seen a copy of the form, please send me one as I have asked for a copy and never have received it. It does not have my signature or authorization, I am far too busy working on my fight for my daughter Dannielynn, to worry about things like trademarking sayings for use in movies, etc.

**In other words, I will seek to have this trademark withdrawn or cancelled on the grounds it was not approved by me.**

So Birkhead is claiming that this was done "by another individual on [his] behalf" - apparently without his consent or approval. Was he referring to attorney Debra Opri? It's impossible to know for sure. However, we do know that Opri was fired by Birkhead recently and that Opri has engaged in Gloria Allred-style media saturation overreach in trying to promote her own name. This would certainly fit the profile of an overzealous entertainment attorney who tries to make outrageous claims on intellectual property to the detriment of the client. But I'll wait for more facts to come in.

Whoever tried to make that trademark registration, it is utterly scandalous even by the standards of the Anna Nicole Smith saga.


   

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