Trademarks vs. Copyrights

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Nick writes, "It's an interesting decision coming from a Supreme Court that recently ruled in favor of the big guys in Eldred v. Ashcroft, which OK'ed massive extensions in copyright terms. There may be no consistent judicial philosophy at work here, but at least this new ruling expands expression."

I don't think there's an inconsistency here, though I would have preferred the court to rule differently in Eldred myself. The key issue in Eldred was whether Congress has the right to extend copyright terms indefinitely, not how powerful the extended copyright protection should be. The new ruling, on the other hand, deals with the proper interpretation of the law—on how much dilution constitutes "harm"—and not with the existence of the law itself.

Also, since this case involves trademarks instead of copyrights, there's a different set of constitutional issues at play. Trademarks do not exist "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." They're just there to prevent customer confusion—in theory, anyway.

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  1. Trademarks, though simple in concept, will perpetually involve these gray areas. What gives, for example, when a manufacturer buys a product from another well-known (or unknown) manufacturer and labels it as their own? Presumably this is OK since the manufacturers in question agreed to do this, but it certainly deceives the consumer. Especially given that some folks what to ‘buy American’ (for any number of stupid or not so stupid reasons but the fact is only that it is important to some consumers).

    Here’s a partial list of “American” cars built by foreign makes:

    Pontiac Vibe = Toyota Matrix
    Chevy Tracker = Suzuki Vitara
    Chrysler Stratus (2 door) = Mitsubishi
    Chevy Prism = Toyota Corolla
    Eagle Talon = Mitsubishi Eclipse
    Mercury Cougar, Ford Probe = Mazda

    Of course, it sometimes works the other way around:

    Isuzu Hombre = Chevy S-10
    Isuzu Avenger = Chevy Trailblazer

    I’m sure this type of ‘rebadging’ as it is called, creates customer confusion but it perfectly legal because the trademark owners authorized it.

  2. I find a definite distinction in the trademark/copyright issue. Trademarks can be held forever (by design) and I don’t have a problem with that. I also don’t see that trademark law is stifling freedom to any great extent. Perhaps I’m just not paying attention. On the other hand the perversion of copyright, and intellectual property law in general, has created a system where every idea belongs to whoever is willing to pay for the most expensive lawyers, and apparently forever. I find this to be a serious threat to my liberty.

    My thanks to REASON for recent articles highlighting this largely ignored issue.

  3. The linked story says that the suit was brought under the trademark dilution statute, not under traditional trademark law. Contrary to Jesse’s last sentence, the trademark dilution statute is not predicated on a showing of consumer confusion, only on a showing that the challenged use tends to “dilute” the “capacity of a famous mark to identify and distinguish goods or services.”

  4. Yes, but the justification for that law is that dilution ultimately increases customer confusion. I discussed the issue a bit in this article a few years ago:

    https://reason.com/0003/fe.jw.copy.shtml

  5. Warren: I agree that copyrights pose more problems than trademarks. I do think trademark law has been overextended in recent years, though, and that the fuzzy notion of “dilution” has been the main engine of that change. For more details, click the link in the above comment.

  6. I read somewhere that Pepsi? had trademarked the words “Uh huh?” and that the Beemer foundation had trademarked the words “Let’s Roll?”.

    Maybe I should trademark the N-word, and then I could get rich every time someone utters it. The arguments about dilution and confusion make me giggle.

  7. Mountain Goat: Feel free to attempt to register the n-word if you want, but you aren’t going to get rich suing people for using it in a non-infringing manner (i.e., the way they’ve been using it all along). You can giggle about dilution and consumer confusion, but the judge won’t, and may well sanction you for bringing a frivolous action.

    Jesse: Unlike copyright law, which must conform to the constitutional provision you cited, trademark law is based on teh commerce clause. As such, the only constitutional justification needed is that the law be a reasonable exercise of Congress’s power to regulate interstate commerce. Any other “justification” for the law is neither here nor there; the law is what it is.

  8. I’m not sure where you’re disagreeing with me, Xrlg. I never said, and certainly didn’t intend to suggest, that trademarks are enshrined in the constitution.

  9. If trademark laws are to prevent customer confusion, then the supreme Court used a different standard. The Court used an after the fact finding (or in this case lack thereof) instead of any prevention.

    The Court could easily have reached its result by only holding that no one shopping from Victor’s little Secret thinks they are buying from Victoria’s Secret?. Similar names can co-exist without confusion: What’s better, a Taurus or Beretta? Both denote ’80s sedans, both also describe handguns.

    It will be hard to prove your how much dilution occurs, and how much harm is caused. I bet the duped rube’s harm is not the measure. The Court again muddies the waters, and removes guidance.

  10. Great article, Jesse. I have a few questions.

    1. Would shorter copyright terms lead to higher prices for new works? Meaning, would a copyright holder have to increase the price of his work in order to obtain a worthwhile profit, given less time to do so?

    2. In the article, you mention films that were never copyrighted. My understanding was that copyright is automatic — if I make up a song and sing it into a tape recorder, it is copyrighted as soon as I finish recording. Is that not the case?

    3. Who holds the copyright on “group” projects? In the case of a big budget film, hundreds of people may be involved. Who is the copyright holder? If it is a corporation, then how do we determine the date at which the copyright ends since corporations can’t “die”?

    4. You didn’t care much for Star Wars?

    I realize the answers here may be complicated. If this isn’t the appropriate place to answer, could you please e-mail me, or if that is too much, simply point me to a convenient resource?

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