defending the right to innovate
Monopoly corrupts. Absolute monopoly corrupts absolutely.
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Monster energy drink backs down from a frivolous trademark claim.
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As an aside, I think the idea of jealously protecting copyright and trademarks, in this digital age, is outdated and ignorant.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]
Monster's abuse is particularly galling in light of the fact that their product is vastly overpriced and no better than any other (far less expensive) cables used to hook up electronic components.
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.
Slate reports on a lawsuit that is an obvious harassment of a small company by a law firm using trademark as a pretext. In short, the suit argues, to take this post as an example, that I should not link to the Slate article like above but rather like this: Slate (http://www.slate.com/id/2210636/pagenum/all/, where the full article can be read).
Yes, you read it right, the suit argues that hyperlinking the way everyone does infringes some trademark, as it supposedly confuses readers. In my case, you are supposed to be confused into thinking that Slate would be part of Against Monopoly. The judge, who may not have heard about the web, did not dismiss this suit, forcing the poor accused party to settle before legal cost would escalate.
I think we can all now agree that copyright and patent are evil and should be abolished (hey, if they can say we are all Keynsians now...).
But what about other forms of IP, such as trademark? One problem is that IP is not really property at all, and is just an umbrella term linking distinct, mostly artificial, positive rights created by the legislature out of thin air--"legally recognized rights arising from some type of intellectual creativity, or that are otherwise related to ideas." (Against Intellectual Property, p. 9.)
Thus patent gives a monopoly to a way of using, or configuration of, practical, useful devices (inventions); while copyright gives a monopoly to certain uses of original creative patterns of information (works of authorship like novels or paintings). While trademark protects a set of rights clustered around one's reputation (but then, so do defamation laws); and trade secret is more like a type of contractual right to keep people from revealing secret information.
From what I've seen, it is clear to most activist-opponents of IP that copyright and patent are terrible. But it is not so clear what is wrong with other types of IP, such as trade secret and trademark. What about these, and other rights, such as various other trademark-related rights (rights against "trademark dilution," certain forms of cybersquatting, and various "unfair competition" claims); mask work protection available for semiconductor integrated circuit (IC) designs, boat hull designs, and (proposed) rights in databases, or collections of information? (See Against Intellectual Property, p. 13, summarizing various types of IP.)
The "intellectual" part of IP improperly lumps together conceptually distinct types of laws; and "propery" improperly begs the question. So these must be treated in turn. Mask work, boat hull, and database rights are very similar to copyright at least in what is problematic about them; so they, too, like patent and copyright, are obviously unjust.
As for trade secret--I deal with this in a short section (pp. 56-57) of Against Intellectual Property, as the bulk of the article deals with copyright and patent, and trade secret law is not nearly as problematic.
So we come to trademark. I deal with this on pp. 58-59 of Against Intellectual Property, and also in some detail in Reply to Van Dun: Non-Aggression and Title Transfer (esp. pp. 59-63). In my view, the new-fangled extensions of trademark law--rights against "trademark dilution" and cybersquatting, etc.--are obviously invalid. Further, federal trademark law is problematic since it is not authorized in the Constitution (copyright and patent are, but not trademark; trademark relies on the Interstate Commerce Clause, and thus the federal trademark law only covers trademark connected to interstate commerce, and does not preempt state law, so that state trademark law still governs many intra-state situations).
But even if federal trademark law were abolished, as well as modern extensions such as rights against trademark dilution, even common law trademark is problematic, for three primary reasons. First, it is enforced by the state, which gets everything wrong. Second (see First), the test of "consumer confusion" is usually applied ridiculously, treating consumers like indiscriminating idiots. Third, and worst of all, the right at issue is the right of the defrauded consumer, not the competitor. Trademark law ought to be reformed by abolishing the right of trademark "owners" to sue "infringers" (except perhaps as proxy for customers, when consent can be presumed or proved), and treating this as a case of the customer's right to sue a vendor who defrauds him as to the nature of the good purchased. Some might argue that this is only a minor change, but it is not: such a change would make it clear that "knockoffs" are usually not a violation of anyone's rights: the buyer of a $10 "Rolex" is almost never defrauded--he knows what he's getting. Yet by giving an enforceable trademark right to the user of a mark, he can sue knockoff companies even though their customers are not defrauded and in fact are perfectly happy to buy the knockoff products.
By the way, examples of trademark abuse are legion. It's not only copyright and patent that give rise to outrageous examples of injustice. See, e.g., Chip Wood, A Bully-Boy Beer Brewer; Justin Levine, 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All, Against Monopoly (09/26/2007); Kinsella, Trademarks and Free Speech, Mises Blog (Aug. 8, 2007); Kinsella, Beemer must be next... (BMW, Trademarks, and the letter "M"), Mises Blog (Mar. 20, 2007); Kinsella, Hypocritical Apple (Trademark), Mises Blog (Jan. 11, 2007); ECJ: "Parmesian" Infringes PDO for "Parmigiano Reggiano", I/P Updates (Feb. 27, 2008); Engadget Mobile Threatened For Using T-Mobile's Trademarked Magenta, Techdirt (Mar. 31, 2008).
Now IP proponents often assume trademark law is unproblematic, and then try to lump types of IP together, so that they stand or fall together. For example it could be argued that if you are for reputation, then you must be for trademark; and if you are for trademark, you must be for "intellectual property"; and thus, you cannot be opposed to IP in principle, so you cannot oppose copyright and patent. (See, e.g., the comments here, making this argument.)
Now one fallacy of this argument is that it relies on the positive law conceptual grouping of different areas of artificial, legislated law to make its point. But there is no reason one has to favor the validity of copyright or patent law, even if one supported trademark law, say. Each has different defects and a different nature.
The other fallacy is the view at work here that there is no such thing as reputation, or even identity, absent trademark law. But this is incorrect. Of course people and firms can have reputations even if trademark law is nonexistent. All that is required is that people be able to identify other people and firms, and communicate. Pro-trademark arguments often implicitly assume that this is not possible, absent state-enforced trademark law, which is ridiculous. For example, how can there be fraud (as in my theory), if the vendor is free to call himself whatever he wants? What if Joe Schmoe sets up a knockoff McDonald's restaurant? Well, it is McDonald's--that's what it calls itself, and the "real" McDonald's can't stop it without trademark rights--so why is it fraud? Well, because the consumer is (per assumption) deceived as to the nature of the goods he is buying. As I argued in Reply to Van Dun (pp. 62-63),
The other thing to realize is that consumers are not stupid. They can spot a knockoff easily. And the trademark frauds are usually going to be marginal low-life types, who could never compete with a legitimate business anyway--the kind of company that makes knockoff Rolexes, which doesn't fool its customers.
Consider. You have a successful burger joint, let's call it "Tommy's." Now, suppose they have no trademark, and other Tommy's pop up. So if you want the original Tommy's, where do you go? You go to the original Tommy's. Which just calls itself The Original Tommy's. (A similar phenomenon is in Twitter, where some well-known people and celebrities' names are taken, like dvorak--so John Dvorak just goes by "THErealDVORAK". End of problem. No anti-Twittersquatting law needed.)
If some other Tommy's tries to deceive customers into thinking it's owned by the same guy that owns the original Tommy's, then they are eventually going to get sued. Or have only marginal customers as people figure out this new place is run by seedy liars.
The truth is that any legitimate businessman wants to use a unique name. Just like people manage to distinguish their identities, even when they have the same names.
I just came across the site of a German patent attorney who seems to collect on his website non-traditional trademarks (archive). A gold mine if you are looking to roll your eyes for hours on end. There are, for example, 84 pages worth of trademarked colors. Other crazy trademarks: the scent of lemon or freshly cut grass; the motion of forming a T with your hands (time-out); moving your fingers to imitate the cutting motion of scissors; giving a child your hand. Oh, how much I have sinned without knowing it.
The August 1 edition of the Wall Street Journal reports that organizers of competitions involving animals, robots, and even body parts have been changing their names to avoid "infringing" the trademarked name "Olympics."
The Ferret Olympics is now the Ferret Agility Trials; the Raw Olympics and Rawlympics are now the Raw Games.
America's only native criminal class (i.e., Congress) passed a statute in 1978 giving the U.S. Olympic Committee a monopoly on the word "Olympic" and a few other words. This was buttressed by a 1987 SCOTUS ruling.
The USOC is trying to prevent "ambush marketing." Its lawyers think that people organizing races by ferrets and such will undermine its profitability. If ever there were an example of what Ludwig von Mises called the Montaigne fallacy (seeing the market as a zero-sum game with someone's profits causing someone else's losses), this is it.
David--sure, it is understandable why you are "much more favorably inclined towards trademarks than other forms of intellectual property." As you say, "It seems to me a good thing that it is possible to tell who you are doing business with, and no downside monopoly". As I noted here, the primary justification for trademark rights is based on the notion of fraud--that the "infringer" is defrauding his customers by misrepresenting his identity and the source of the goods being sold (see pp. 43-44 of my Against Intellectual Property, pp. 59-63 of Reply to Van Dun: Non-Aggression and Title Transfer, p. 34 of A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability).
But this analysis would give a cause of action to customers, however, not to the holder of the mark, who is not defrauded. Moreover, it would protect the customer only when there is fraud. For example, neither the customer (nor Rolex) should be able to sue Rolex knock-off companies, because people who buy fake Rolexes for $10 are not being defrauded. They know they are buying a cheap knock-off. But trademark law does give trademark holders--not customers--the right to sue infringers, regardless of whether there is really fraud to the consumer.
So while we can condemn fraudulent sales to customers, this is not what modern trademark law prevents. Modern state-run trademark law is almost as bad as cpoyright and patent, even if it has a less-objectionable core or origin. The fundamental problem with trademark law is that it is state law--it is created and administed by the state, which is a criminal organization. To expect justice from the state is like expecting a cat to bark.
Thus we have trademark rights granted to trademark holders, instead of to customers, the real victims of fraud. Thus we have a statutory scheme establishing an arbitrary, artificial legal system and an inept bureaucracy to construe and enforce it. Thus we have ridiculous extensions of trademark to cover "anti-dilution" rights, much as the term and scope of copyright and patent are gradually increased over time. And thus we have the government's courts used like trademark's more infamous cousins, copyright and patent, to stifle competition and squelch free speech. See, e.g., A Bully-Boy Beer Brewer, Straight Talk; 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All; Trademarks and Free Speech; Beemer must be next... (BMW, Trademarks, and the letter "M"); Hypocritical Apple (Trademark); ECJ: "Parmesian" Infringes PDO for "Parmigiano Reggiano"; Engadget Mobile Threatened For Using T-Mobile‘s Trademarked Magenta.
Clearly, this is just another example highlighting why the state is worse than useless; it is a harmful criminal organization.
And in fact, US trademark law is unconstitutional. While the US Constitution, to the extent it is legitimate and not just the de facto result of a successful coup d'etat, unwisely authorizes Congress to enact copyright and patent law, no provision is made for trademark law. Instead, trademark law is based on an unconstitutionally expanded reading of the Interstate Commerce clause. As James J. Kilpatrick noted in The Sovereign States: Notes of a Citizen of Virginia, in describing the Supreme Court's illegitimate expansion of power under the guise of the Constitution's interstate commerce clause:
It was an insidious process, conducted with the care of the cat that stalks her prey - now creeping forward, now pausing to sniff the air; now advancing, now lying still as the bird takes alarm; then edging forward again, and so, step by inexorable step, moving to the ultimate seizure.
But it started at the very beginning of the United States. Tom Dilorenzo, in The Founding Father of Constitutional Subversion, explains:
"Hamilton was also likely to be the first to twist the meaning of the Commerce Clause of the Constitution, which gave the central government the ability to regulate interstate commerce, supposedly to promote free trade between the states. Hamilton argued that the Clause was really a license for the government to regulate all commerce, intrastate as well as interstate. For "What regulation of [interstate] commerce does not extend to the internal commerce of every State?" he asked. His political compatriots were all too happy to carry this argument forward in order to give themselves the ability to regulate all commerce in America."So don't stop with copyright and patent: abolish the unconstitutional Lanham Act, and its unjustifiable grant of trademark rights to trademark holders instead of defrauded customers, and maintain the link to fraud (knockoffs are fine; no anti-dilution law).
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