Intellectual Property

IP Imperialism: A Roundup

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The NFL is trying to trademark the phrase "the big game."

Discovery Communications thinks it can use copyright and defamation law to squelch a site that mocks a marketing campaign.

And according to Wired News, the RIAA, stymied in one of its infringement suits by the news that the defendant didn't actually do the downloading that roused its lawyers, wants a judge "to rule that the owner of an ISP account is responsible for all activity on that account," despite the ominous implications that would have for open wireless hotspots.

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  1. This is the NFL’s way of closing the loophole where companies would give away tickets to “The Big Game in Miami” because they weren’t allowed to actually call it the Super Bowl (TM) without being an official NFL sponsor.

    What’s next? Will they trademark the phrases “You know what”and “Wink, wink” as a preemptive measure?

  2. As I recall, the original purpose of a TM was to give to a consumer signals about the quality of the product, etc. Now it seems that TM are often treated as if they were a form of property.

  3. The best ad I saw a bar do was for the 2006 SB.

    Super XL Bowl of chips party.

    Free XL bowl of chips from 5pm until 10pm (one per customer)

    But knowing the NFL that was pretty risky. I can see the value in their branding of “Super Bowl” but the “big game” that seems to not only be in common use. Also it appears that the NFL isn’t actually using “The Big Game” which would also make it difficult to TM that mark. Anyway it seems overly litigious.

    But I am no expert on TM law.

  4. Grotius: Very observant. Trademarks can be worth as much as all the physical capital that a company owns. It is very much property. Gone are the days where buying something from Brand X meant that the good people up at Brand X Factory made a reliable product. Nowadays, brands are bought and sold, reputations are built and competitors are targeted for law suits. And, oh yeah, I guess there’s also some protection against consumer confusion, but it’s hard to tell from the jurisprudence surrounding this area of law.

  5. I want to know how long before “Super Bowl” becomes a generic term for “championship ball game.” If that happened, the NFL would no longer be able to stop people from using it. Of course, given the money involved, that’s a pie in the sky dream.

  6. I’m gonna go ahead and call it the “Big Fucking Game” from now on. Trademark that, bitches.

  7. Great thread. Glad to see growing libertarian opposition to IP. I’ve been advocating scrapping copyright while leaving registered trademark as is. Now I’m starting to think we need to overhaul TM as well.

  8. I’m so tired of all of this crap, I’m ready to go as far as a Constitutional amendment revoking Congressional authority to setup the Patent office. AFAICT, current patent research is simply a process to keep one from getting sued, instead of to find published ideas to build upon.

    I still see a clear argument for content IP (music, video, books, etc.), but the rest can get flushed for all I care.

  9. I’ve been advocating scrapping copyright while leaving registered trademark as is.

    Well, this is a blog post discussing an article at an Internet publication called “Wired News.”

    Presumably this thd would not exist absent this article.

    Presumably if this thd did not exist, I would not be reading your thoughts on this matter. It is even possible that if articles like this “Wired News” article did not exist, then you might not even be having thoughts on this matter at all, Warren.

    So what does “Wired News” have to say about copyright, you might wonder. I went to the site like some kind of cyber-Colbert and checked. here is what they had to say:

    Wired.com ? 2007 Cond?Net Inc. All rights reserved.
    The material on this site may not be reproduced, distributed, transmitted, cached, or otherwise used, except with the prior written permission of Cond?Net Inc.
    For more information, please contact us.

  10. Dave W:

    Bravo!! Now, what’s your point again? Surely you don’t think you’re the first person to notice that published stories regarding IP are copyrighted? Surely you know that the copyright label isn’t even necessary? Is your point about hypocrisy? I think we can all do without that piss poor lecture.

  11. Let’s see, so Cal-Stanford have to rename their 100 year old rivalry (60 years older than the Super Bowl)?

  12. Oh and about holding the owner of the ISP account responsible. Wouldn’t that mean that we could sue the owner of a road for allowing a bank robber use the road to facilitate a criminal committing a crime?

    Say who owns the roads anyway?

    And the discovery channel needs to do a little reading. Parody (as long as there is no legitimate confusion) is a fair use of trademarked or copyrighted materials. Ask Weird Al.

    Also lets not over react to overly aggressive a-holes like the RIAA and NFL. Its starting to sound as if you guys think intellectual property is theft.

  13. Trying to hold ISPs responsible for content across their wires is like trying to make the mailman responsible for content of the mail delivered.

  14. The NFL is trying to trademark the phrase “the big game.”

    Cal and Stanford may have a slight problem with that.

  15. Bravo!! Now, what’s your point again?

    that “scrapping ip” is likely to have consequences that Warren has not considered — may not even be in a position to consider.

    I found his comment about “scrapping copyright” to be careless in the sense of painting with far too broad a brush.

  16. “There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest.”
    ~Judge in a Robert Heinlein short story (Life Line)

  17. I never really understood how the Bay Area alums could get away with the patently false moniker “The Big Game” amyway. Good. Time for a little truth in advertising. I have some suggestions for Cal and Stanford alums – you may want to get these Trademarked now so you don’t run in to these problems in the future.

    The Medium Game.
    The Slightly Below Average Game.
    The WTF Game.
    The Irrelevant Game.
    The “Who Cares?” Game.
    The “We are bigger than the NFL Pro-Bowl” Game.

  18. We don’t need to scrap IP ferchrissakes! Trademark law has been blindsided by the rise of the Internet and been abused by some large TM holders as a result, but it still performs a legitimate function.

    The biggest problem with trademark is that its basic legal standard of “consumer confusion” is very mushy and subject to endless litigation compared to the clearer standards in patent and copyright. This wasn’t such a problem when most businesses were local, but now every “Joe’s _fill in the blank_” business thinks that every other “Joe’s” in the world is an infringer, thanks to the Internet. That is a problem that can be solved, I suspect.

  19. ChrisO: I think “dilution” is the worst development to hit trademark law.

  20. Berkeley & Stanford even played it as rugby for a few years when both schools had suspended American football.

  21. I found his comment about “scrapping copyright” to be careless in the sense of painting with far too broad a brush.

    I’ve been happy with TM, but this post has me rethinking that. But copyright, I’ve thought that through and I’m totally convince we’d all be much better off without that government bequeathed monopoly. I understand the wold as we know it can’t exist without it. But no way can you convince me people will stop writing books, recording music, uploading to the internet, etc. Indeed I’m thoroughly convinced there would be far more and far richer content created if we were to free ourselves from the copyright regime.

  22. Indeed I’m thoroughly convinced there would be far more and far richer content created if we were to free ourselves from the copyright regime.

    Well, certainly no one would be writing for a living, that’s for sure.

  23. ChrisO: I think “dilution” is the worst development to hit trademark law.

    Yep. Another term for “dilution” is “full employment for IP litigators.”

    But no way can you convince me people will stop writing books, recording music, uploading to the internet, etc.

    I think there’s a balance to be found. The point of American copyright originally was to spur the development of new imaginative works. The idea being that more people would spend their time doing creative work if they were given the possibility of profit from it.

    Interestingly, though, the concept of copyright (indeed the very term itself) has its origins in officially sanctioned English publishing monopolies. The English laws weren’t concerned with the person who created the written works in question (who were viewed as nothing more than a type of craftsman in the pre-Romantic era), but with protecting the monopoly status of well-connected English printing houses. In a sense, nothing’s changed, eh?

    The continental Europeans wax poetic in their copyright systems about “artists’ rights” to justify near-permanent copyright terms, but in the end the same conglomerate “neo-guilds” seem to be the ones who financially benefit from such perpetual copyright, eh?

  24. I sorta like “the big-but-most-of-the-time-really-goddamn-boring-except-for-the-gambling-and-now-even-the-commericals-suck-because-they-try-too-hard game.”

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