[pp.int.general] trademarks

[Reinier Bakels]

> If I'd the idea to buy a ROLEX, I'd visit a dealer I trust. Just because
> there is a brand name attached to a product, no law guarants, that there
> is that product inside.

Again: if it is illegal, that helps.

>
>> When trademark law applies to the shape and appearance of goods,
>> it can create a scarcity of goods with that shape and appearance.
>>
>> So perhaps trademark law should only apply to names and logos.

Trademarks may not:
- be descriptive (no monopolisation of language)
- have a technical effect (the smell of freshly mowed grass as a trademark 
for golfballs was rejected because it has the "technical effect" of hiding 
the unpleasant smell of rubber)
- contribute to the true value of the goods
These provisions should prevent any monopolisation effects.
>
> Names and logos aren't less dangerous. The last well known cause in
> germany was Jack Wolfskin
> (http://www.jack-wolfskin.com/desktopdefault.aspx). They tried to sue
> various people for selling stuff with an paw on it.
And were they successful? Did these people perhaps indeed try to benefit 
from Jack Wolfskin reputation?

Litigation cost may be an essential factor. In NL, trademark infringements 
are often litigated in preliminary proceedings, which are relatively fast 
and cheap (thousands of euro's not more). In the US, outrageous litigation 
cost is probably a problem by itself. It induces all kinds of extortion.

It can't be a PP objective to prevent all litigation in commerce. Yes, there 
is a dire need for "alternate dispute resolution" means to reduce litigation 
cost. But that is a different thing. And (at least in NL) courts promote 
ADR, because it decerases their workload. And - unlike the patent office - 
courts are not financially incented to promote court litigation ...

>
> Intel sued various people for using the word "inside", and remember the
> company that tries to own the "I"? German Telekom won several cases for
> the color magenta.
If you try to sell telecom products using this typical magenta colour, yes, 
it may be unfair competition. But trademark law does not prevent you from 
selling magenta toilet paper - to name just a product. Trademark law 
distinguishes by product group. (I was actually suprised when someone was 
caught by customes with Louis Vuitton toilet paper - because LV does not 
sell toilet paper itself. (And it is ugly. But that is a matter of taste. I 
hate LV)).

I would be surprised if "xxx inside" really infringes the "Intel inside" 
trademark, because it is by and large descriptive. Would the designation 
"AMD inside" create confusion? (which is decisve for trademark 
infringement)? I would say: rather the opposite.

That reminds me of Peugeot, with its x0y seris of cars, objecting against 
Porsche using "901" designation. So Porsche chose "911" (which nowadays has 
a very special meaning, but that is something else). With the confusion 
creterion, think of someone planning to buy a Peugot, and then, when rhe 
returns home notices that - by mistake - he bought a Porsche. Yes, he was 
suprised about the price, but did not notice he bought a Porsche instead of 
a Peugeot ...
>
> Trademarks are very easy to be used against competitors, and they do not
> provide a real benefit. Betraying a consumer is illegal, trademarks do
> not offer any protection agaist that.
>
There are always these general rules of unfair compettion and tort. I tthink 
it is helpful to have more specific rules whenever possible (which may even 
be required under German law because it has no open-ended tort - which would 
remind of gesundes Volksempfinden).

BUT THERE ARE MUCH MORE SERIOUS CONCERNS

The reactions from Amelia, Richard and Christian are mostly fairly 
theoretical. In practice, there are other problems. In addition to the ones 
I listed yesterday, I'd like to mention the basic conflict between 
trademarks and freedom of speech. Under certain conditions, communications 
that hurt the reputation of a trademark may be illegal. The logic is that 
trademarks may represent a (very) high monetary value, that could be 
destroyed if the reputation is affected. But what if you want to criticise 
e.g. the environment policies of Shell? This is not straightforward. 
Wolfgang Sakulin is writing a PhD about it at Amsterdam University.

A related, but not trademark based problem occured when Dutch people 
criticised labourt policies of India-based jeans manufacturer G-Star. They 
were sued for crminal libel. International criminal allows prosecution in NL 
if a) the act is both criminal in the lad where it occurred and NL b) 
subject to a maximum sentence of at least one year. And there was a very old 
treaty for the exchange of crminal offeders between India and NL. In the 
end, the peroblem was solved not with legal methods, but with 
behind-the-scenes diplomacy.

IN SUM, PLEASE CONCENTRATE ON THE REAL PROBLEMS WITH TRADEMARKS, not on 
esotheric (and probably flawed) philosophical arguments like "scarcity of 
information goods". (The domain name problem shows that name spaces actually 
exhibit scarcity - for intangible goods!).

reinier