<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
<HTML><HEAD>
<META content="text/html; charset=iso-8859-1" http-equiv=Content-Type>
<META name=GENERATOR content="MSHTML 8.00.6001.18904">
<STYLE></STYLE>
</HEAD>
<BODY bgColor=#ffffff>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS">There is apparently some
confusion about trademarks in PP circles.</FONT></DIV>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS">Are trademarks basically
OK? Yes and no.</FONT></DIV>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS">Trademarks essentially
protect vendor reputations. Which makes them a useful alternative even for
patents: it allows competitive products, but not under the guise of someone
else.</FONT></DIV>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS">Still, there is a number of
problems with trademarks:</FONT></DIV>
<UL>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Exhaustion: there used to
be workdwide exhasution, until about 20 years ago. In US terminilogy, this is
the "first sale doctrine": once a product is sold, one is free to resell it,
using the trademark. Under the present regime, people were prosecuted for
offering second hand products on eBay, mentioning the trademark. Within EU,
that is allowed. Selling e.g. a product bought in the US in EU is illegal if
the trademark is used. Which is obviously preposterous in the Internet era.
Vendors may claim that they don't want prople to buy 2nd hand products,
because it decreases their profits, and it may hurt the luxury image of
products.</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Criminalisation: perhaps
there is a reason to criminalise outright fake products (same products with a
trademark that mimics the original as closely as possible). But there is also
trademark infringement if a trademarks only <EM>resembles</EM> a protected
trademark too closely. What is "too closely"? The ECJ defined the "confusion"
criterion in the Puma v. Sahel case (for Germans known as "springende
Raubkatze"). This requires a very sublte judgement, certainly beyond the
competence of criminal authorities, let alone customs. Similarly, "dilution"
or any other action that hurts the reputation or distinctive quality of a
trademark may be illegal. That is not something to criminalise
either.</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Accumulation: some PPs
object the accumulation of copyright and trademarks. I don't think it can
be prevented, and I don't think it is a specific problem. Any original text,
drawing, 3-D shapes etc. gets copyright protection automatically by
law. And obviously these "signs" are used as trademarks. Obviously, abuse
should be prevented. Like the smart Dutch publisher who tried to (effectively)
extend the copyright of the (locally) famous "Dick Trom" books after it
expired by registering the title and cover as trademarks.</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Trademark are registered
for errtain classes. Which allows a trademark to be reused in a (very)
different field of endeavour. For instance, Ajax is not only a famous Dutch
football club, but also the trademark of fire extinguishers, and a
detergent. So far so good. But trademark owners may also abuse their
trademarks. Example: the "ICE" trademark of German high-speed trains is also
registered for travel bags. Here the trademark is not used to protect a
product, but only to make money.</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Parallel import:
trademarks prevent parallel import, outside the EU. Reasons for vendors to
prevent parallel import include: price protection, ptrotection of (luxury)
brand image, serviceability of products (including the "problem" of
non-authorised dealers and repair shops, e.g. for cars). Perhaps some of these
reason are valid, but consumers are faced with higher prices if parallel
imports are prohibited. Within EU, luxury perfume seller Dior tried to
resort to copyright - by default of trademark protection within EU preventing
reselling - to prevent discount drugstore chain Evora (owner of Kruidvat,
well-known in NL) to <EM>advertise</EM> using images of the their bottles -
because that would hurt the luxury image of their brand. The court did not
accept the argument (Google: Dior-Evora).</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Bad faith trademark
registration: legal enforceability of trademarks depends on registration.
Traders may have forgotten to register the trademark they are using, which
allows a competitor to register the trademark, end prevent the original user
from using it. PP should oppose that (but it is current law).</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Dilution: vendors often
like their brand name to be considered a synonym for the product, because it
gives the impression that the product is the only one. For instance,
"powerpoint" is often used as a synonym for: PC-based presentation. "Oh no, I
prefer Open Office 'Impress' as my powerpoint tool". Somehow contradictory, it
may be illegal to use a brand name in such a way that it causes the trademark
to loose its distinctive quality! Because a trademark may be no longer be
considered enforceable if it really deteriorated to a species name. For
instance, it may be illegal to designate a certain type of train as
"intercity", because it is a registered trademark! Obviously, such "abuse" of
trademarks should not be prosecuted.</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Customs: the ownership of
trademark-infringing products for personal use is not considered illegal (at
least in NL), but importing is. Afaik customs authorities are not actively
prosecuting travelers importing infringing products. But one day that may
change. Would I be caught wearing the 10 euro Rolex watch I bought on the
market in Bangkok? Or using the 15 euro "North Face" backpack I bought in
Saigon?</FONT></LI>
<LI><FONT color=#0000ff size=2 face="Comic Sans MS">Incidentally, there are
rumors that Lacoste manufactures the (alleged) illegal fakes sold on Asian
markets themselves! (which can be proven by chemical analysis of the dyes that
are used)</FONT></LI></UL>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS">In sum. trademarks are not
really innocent. Yes, they may provide a better alternative for patents. But
e.g. criminalisation of trademark infringement is definitely a
risk.</FONT></DIV>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS"></FONT> </DIV>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS">Feel free to put this
information on a Wiki for reference.</FONT></DIV>
<DIV><FONT color=#0000ff size=2 face="Comic Sans MS"></FONT> </DIV>
<DIV><FONT color=#0000ff size=2
face="Comic Sans MS">reinier</FONT></DIV></BODY></HTML>