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Against Monopoly

defending the right to innovate

Trademark

Monopoly corrupts. Absolute monopoly corrupts absolutely.





Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


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Trademarking a phrase?

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 CNBCthat hetrademarked 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.

You can trademark red soled shoes?

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.

Imitation is the sincerest form of flattery

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

First windows, now orange

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

Apples Owns "App Store"?

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 Insanity

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.

Ron Coleman on 'Returning balance to the IP equation'

Ron Coleman writes an essay well worth reading on how trademark law has morphed into perverse measures at the hands of IP attorneys and big businesses looking to protect their turf in response to overall changes in the IP landscape.

A small sample:

Many "IP enforcement" attorneys believe that while there is no shortage of bona fide infringement to occupy at least a large number of them, trademark law practice has, to a very large extent, descended to an anti-competitive methodology utilized by dominant market players not to prevent consumer confusion, as was its original rationale, but to reduce consumer choice and overall welfare by preventing competition. For them, the signal development enabling this "evolution" must be widespread acceptance, on extremely dubious authority, of the doctrine of "initial interest confusion" ("IIC") in trademark as a substitute for the traditional standard requiring that a finding of infringement be based on evidence of a "likelihood of confusion" between the plaintiff's trademark and the device, words, or other branding mechanism utilized by the defendant.

Access the entire article through Mr. Coleman's blog here:

http://www.likelihoodofconfusion.com/?p=6576

"An energy drink is not a beer, and the word 'monster' is not 'Vermonster.' "

Monster energy drink backs down from a frivolous trademark claim.

Details here.

What's Next--Trademarking Language? Don't be *Ridiculous*!

From zenhabits: Feel the Fear and Do It Anyway (or, the Privatization of the English Language)

Post written by Leo Babauta.

Today I received an email from the lawyers of author Susan Jeffers, PhD., notifying me that I'd infringed on her trademark by inadvertently using the phrase "feel the fear and do it anyway" in my post last week, A Guide to Beating the Fears That Hold You Back.

The phrase, apparently, is the title of one of her books a book I'd never heard of. I wasn't referring to her book. I'm not using the phrase as a title of a book or product or to sell anything. I was just referring to something a friend said on Twitter.

Her lawyers asked me to insert the (R) symbol after the phrase, in my post, and add this sentence: "This is the registered trademark of Susan Jeffers, Ph.D. and is used with her permission."

Yeah. I'm not gonna do that.

I find it unbelievable that a common phrase (that was used way before it was the title of any book) can be trademarked. We're not talking about the names of products we're talking about the English language. You know, the words many of us use for such things as talking, and writing, and general communication? Perhaps I'm a little behind the times, but is it really possible to claim whole chunks of the language, and force people to get permission to use the language, just in everyday speech?

What if this were taken to an extreme? What if some billionaire (say, Bill Gates) decided to start trademarking thousands and thousands of phrases, so that he could charge us for each use, or so that we'd have to link back to the Microsoft homepage with each reference? The language, in this scenario, could be entirely privatized if we allow this sort of thing.

So, while this post is probably ill-advised (and yes, I realize that I'm actually giving publicity to Ms. Jeffers), I have to object. I think we have a duty, as writers and bloggers and speakers of the English language, to defend our rights to words. Free speech is a bit of an important concept, I think.

As an aside, I think the idea of jealously protecting copyright and trademarks, in this digital age, is outdated and ignorant. You want your ideas to spread, and you should encourage people to spread your ideas, not put up all kinds of boundaries and restrictions and obstacles to that being done. This blog, for example, is Uncopyrighted, and will always be free, because I want people to spread my posts and ideas. I think it's actually good for me as a writer, and it's (not insignificantly) better for the writing community in general if we can share each others' work freely. I'm hoping that with posts like this, and the good work of thousands of other like-minded people, the old mindset of fencing off ideas and language will slowly change.

So, no, I will not be adding a Registered Trademark symbol to the previous post. And no, I won't be adding a phrase of legalese to the post. And no, I won't even attribute the phrase or link to her book, as I wasn't referring to the book. And no, I won't remove the phrase.

I'd rather be sued.

Oh, and I'm not going to change the title of this post either. You'll have to remove it from my cold, dead iMac.

On a side note: You may feel free to use the title of my book, The Power of Less, in any of your blog posts, on Twitter or even (gasp) everyday conversation.

[Cross-posted at Mises blog]

Trademark lawyers are out of their mind

We have seen, here or elsewhere, trademark suits that were silly, but this one takes the cake. Compare the two following logos:

Re/Max argues, according to this article that the rehava logo is too similar to its own. You may wonder how. Here is a quote from the Re/Max lawyer: First of all, both names start with "r" and have logos with accent lines near the letter "e". It goes beyond that. If you chop the top off of the 'h,' you (almost) have the 'm' in Re/Max. The next letter is an 'a,' and if you take the 'v' then you have half of an 'x'. I am not making this up... Nobody in their right mind would believe this, but apparently some lawyers believe they have a case. Or they found a small company to bully. In any case, it shows how trademark law is ill-conceived.

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