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Against Monopoly

defending the right to innovate

Trademark

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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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 CNBC that he trademarked 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.

Probably we just need better people

Via Dave Backus...with some delay. In brief: some poor guy making t-shirts saying "Eat More Kale" is getting sued by a large restaurant chain whose slogan is "Eat Mor Chikin".

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.

Pushing the limits of imitations in Switzerland

Anybody who has spent some time in Switzerland must have noticed the big orange "M" of the largest retailer, Migros. This is not your usual retailer, as it is produces the goods in its own facilities, thus cutting a middleman or two, and is owned by its customers. Interestingly, it produces only for the domestic market, and very rarely you will find its brands abroad. While Migros carries only store brands, they are of good quality and often designed to compete with "well-known" brands from competing retailers.

And Migros has for decades been pushing the limits of how closely it can imitate brand products, often openly making puns on brand names and besting the quality of the imitated product. And while the imitated brand holders were upset, there is little they could do and Swiss courts have been largely sympathetic to Migros. The judges are probably shopping there.

Now it seems that Migros may have overstepped some boundary. As the Tagesanzeiger reports (in German), the new line of ice cream "Jane & Mary", a clear imitation of "Ben & Jerry", will be modified once the current stock is sold. Brand holder Unilever must have made some legal threat that had some impact, but how is unclear. Migros does not need Unilever, being quite self-reliant, and there have been more blatant imitations in the past.

In any case, the next time you are in Switzerland, check out Migros and try to recognize all the imitations. And sample its goods, especially in the chocolate and dairy section.

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

Kneejerk Cease and Desist Letter Over Trademark Claim Makes Fools Out Of Yet More Lawyers

ThinkGeek.com posts the letter and calls it "OFFICIALLY OUR BEST-EVER CEASE AND DESIST".

Read it all here:

http://thinkgeek.com/blog/2010/06/officially-our-bestever-cease.html

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