June 19, 2017

The Supreme Court rejects government power to refuse to register trademarks it finds offensive.

The case was not about the Washington Redskins but a rock band called The Slants.  The NYT reports:
The decision, concerning an Asian-American dance-rock band called the Slants, probably also means that the Washington Redskins football team will win its fight to retain federal trademark protection.

The law at issue in both cases denies federal trademark protection to messages that may disparage people, living or dead, along with “institutions, beliefs or national symbols.”
I'm very glad to see this ruling. We talked about the case here last September.

Here's today's opinion, Matal v. Tam:
Alito, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–A, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined, and in which Thomas, J., joined except for Part II, and an opinion with respect to Parts III–B, III–C, and IV, in which Roberts, C. J., and Thomas and Breyer, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Gorsuch, J., took no part in the consideration or decision of the case.
Unanimous, but complicated. The NYT doesn't explain the complication, so I will have to look into this more deeply. But for now I'll extract this, about the "government speech" doctrine in the precedents, from Part III-A of the Alito opinion (which all the voting Justices joined):
Holding that the messages on Texas specialty license plates are government speech, the Walker Court cited three factors distilled from Summum. First, license plates have long been used by the States to convey state messages. Second, license plates “are often closely identified in the public mind” with the State, since they are manufactured and owned by the State, generally designed by the State, and serve as a form of “government ID.” Third, Texas “maintain[ed] direct control over the messages conveyed on its specialty plates.” .., [N]one of these factors are present in this case.

In sum, the federal registration of trademarks is vastly different from the beef ads in Johanns, the monuments in Summum, and even the specialty license plates in Walker. Holding that the registration of a trademark converts the mark into government speech would constitute a huge and dangerous extension of the government-speech doctrine. For if the registration of trademarks constituted government speech, other systems of government registration could easily be characterized in the same way.

Perhaps the most worrisome implication of the Government’s argument concerns the system of copyright registration. If federal registration makes a trademark government speech and thus eliminates all First Amendment protection, would the registration of the copyright for a book produce a similar transformation?...

67 comments:

tcrosse said...

Good news for us Althouse Hillbillies™

Scott M said...

I see what you ™'d there.

SGT Ted said...

It's only "complicated" because it thwarts the regressives efforts to police speech it doesn't like.

PC is just fascism pretending to be manners.

John Tuffnell said...

Clears the way for me to TM my pale-faced light/bright-sensitive band The Squints.

Matthew Sablan said...

Makes sense. If someone wants to pay for the right to offend people, the government might as well pocket their money.

wholelottasplainin said...

How could a private property right such as a registered trademark also be "government speech"?

Matthew Sablan said...

"How could a private property right such as a registered trademark also be "government speech"?"

-- I assume on the same way that while the government cannot censor, the government CAN elect not to display certain art in government buildings because it might appear the government is endorsing certain things (you see this a lot in official license plate debates, for example.)

Once written, twice... said...

I applaud this decision. The proper way to get the owner of the Washington Redskins (which is an offensive name, especially given the history of the team) is to put commercial pressure on the NFL and the team directly.

Bob Ellison said...

A registered trademark is not a private property right. It's a government license, not a right at all, but a government grant, that keeps non-trademark-owners from using the trademark. I get to sue you for saying your soda is Coca-Cola.

Trademark is a government concept, a fascist concept, that derives from guilds. We should abolish trademark registration.

Once written, twice... said...

I have retired "Althouse Hillbillies" as a sign of support for Ann's request for more civility in her comments. If her experiment in a new civility for her blog does not pan out, I reserve the right to bring it back. And obviously Ann has the right to ban me.

Michael K said...

I have retired "Althouse Hillbillies" as a sign of support for Ann's request for more civility in her comments.

I was hoping you had realized how counterproductive it was for the left.

Dave from Minnesota said...

I had a friend in college who wanted his personalized license plate to say "Nuke Em". The Wisconsin DMV said no.

I support the DMV there. But if he wanted to start up a band named "Nuke EM", that would be different.

Bob Ellison said...

If it doesn't say "Government-Approved" on the box, you can't be sure it wasn't done by someone just trying to make a buck delivering a good product.

Jason said...

"Trademark is a government concept, a fascist concept, "

lolwut?

Matthew Sablan said...

"Trademark is a government concept, a fascist concept, that derives from guilds. We should abolish trademark registration."

-- I actually think the government has a legitimate interest in making sure I'm not claiming to be Microsoft and selling bum goods.

Bob Ellison said...

Jason, I strive for brevity, sometimes badly.

Let's say you make Jason Burgers. Good burgers. Everyone likes them.

You register a trademark. The Government says OK, Jason Burgers (tm) are made by only this guy or anyone he licenses to make them.

Nobody can make Jason Burgers without your say-so. Otherwise you could sue for trademark infringement. George can make George Burgers, but he can't call them Jason Burgers, because the government steps in to help you sue George.

That's how it works. It's fascist because it puts government power in service of the business that wants to prevent competitors. That's really how fascism works.

Jason said...

You think that'a fascism?

Matthew Sablan said...

Nothing is stopping George from making George Burgers, or Burgers, or Tacos. The government is just preventing him from claiming your reputation as his own.

William said...

So here's my question. Why can't we simply fire the cretins in the Patent and Trademark Office who, because of their misguided ideology, took this case up to SCOTUS.

I worked in the private sector, and I remember well when a good friend and colleague was fired from our company for making "an inappropriate business decision."

Of course when you're with the guvmnt, you can do anything you want—no matter how wrong or inappropriate that may be—with total impunity.

A sad state of affairs.



mockturtle said...

Great grumbling toads! Why aren't they working on the travel ban or some other important decision?

Bob Ellison said...

Matthew Sablan, the government could indeed have a legitimate, public-calming interest in maintaining stability, smooth society, reliability, etc. in requiring that Microsoft products be actually made by Microsoft. (That's an interesting example. It's civil law here. If someone else started selling corrupt Windows that stole credit card data, there would be criminal stuff, but Microsoft would be the one holding the tort, right?)

What if the government got the hell out of the business of blessing business trademarks? We've seen the same argument on marriages WRT SSM, and I agree with that argument. The government should not be in the business of doing stuff it has no business in. Trademarks are a guild business; keep the government out.

Kirk Parker said...

"I actually think the government has a legitimate interest in making sure I'm not claiming to be Microsoft and selling bum goods."

Of course it does! We fine citizens want to be sure we're buying bum goods direct from the legitimate source, not some imposter.

Bob Ellison said...

By the way, in the computer software business, I could tell you stories. Don't read further.

We used to beat the hell out of each other, mostly over copyright. Patent-holders fall in two categories: those who get them to steal from others, and those who get them to fight patent suits from the first group.

In trademark, it used to be that you relied on your customers and distributors to know who was the supplier. Nowadays that's really all gone. It's all government. It's all statism. You can really trust this Ford that might've been built in Mexico by Uruguayans from parts sourced from Malaysia.

But I digress.

sinz52 said...

Bob Ellison said: " It's fascist because it puts government power in service of the business that wants to prevent competitors. "

That is no more "fascist" than laws against identity theft.

It's not "fascist" for the government to stop me from claiming that I'm the real Bob Ellison and I have access to all of Bob Ellison's bank, credit, and investment accounts. Or that I have Bob Ellison's Social Security number.

In a sense, your name and Social Security number are your personal "trademark." I can't use them in your place.

Real American said...

allowing people in government to decide what is and isn't offensive is a very bad idea. Good for the court.

gspencer said...

"Okay, class, lets go over this again. Lets say it in unison, "Only offensive or unpopular speech needs protection."

"Here's a hot tip for ya. The final will be a week from one. Expect this point of law to be on the test."

Bob Ellison said...

sinz52, I can sue you for such offenses. That's a civil thing the courts can decide. I could sue for misuse of my bank account numbers or my social security number.

That wouldn't get you very far, by the way. There's a whole industry on identity protection. The vendors are holding all the liability. Don't tell the people who watch Fox News.

Trademark puts the government on my side. If I register "Bob Ellison", then I can use the government to punish you for using the name.

I haven't tried, but maybe I should. Bob Ellison was a famously successful producer who did the Mary Tyler Moore Show and other great stuff. I may be too late.

Bob Ellison said...

This is going to be a long thread. I hope so. I have a high opinion of the AA commentariat.

Birches said...

At least there's something good that happened today.

Owen said...

Bob Ellison: valiantly argued but I don't see your system working well. Let's ignore the brand equity built up in a trademark by its owner that encodes a great deal of information about the product and the promises that attend its design, manufacture, distribution and future support in the hands of the buyers. Let's focus instead on the mark not as a property right protected by the fascistic State but as a way to prevent fraud on consumers.

You say there is a less-fascistic way to protect them? So, how? Would courts everywhere (or anywhere) recognize those fraud claims --at all or in a consistent fashion? Wouldn't courts want to avoid that task, which after all would undercut the right of everyone to compete and sell shoddy goods and blame some other supplier, or free-ride off another's reputation? By forcing every supplier to operate as a maker of generic goods, you will see the end of competition on important dimensions of products.

If you kill off trademark, you also kill design patents and, hey, why not just do away with utility patents and copyrights as well? Because in every case the State is applying its muscle to help a property owner chase off a potential new entrant.

If you are sincere in your argument, I have a great tip on where to buy very cheaply an expensive Swiss-like watch to impress your friends. It is extremely accurate, twice a day.

Bob Ellison said...

So how's about I register "Bob Ellison" as a blog commenter?

Hey, this is just getting fun.

wholelottasplainin said...

Bob Ellison--"Trademark puts the government on my side. If I register "Bob Ellison", then I can use the government to punish you for using the name."
********************
Wrong again. Anyone named Bob Ellison would have an absolute defense. First, you can't simply register your name w/o it being associated with a distinctive product or service. People with the same name but not holding themselves out as offering goods and services under your registered name aren't violating any law or infringing on your right.

How many people in the US are named Roy Rogers, for example: you think the fast-food chain goes around suing them?

My nickname/name appears verbatim on an item I see in my supermarket. That vendor hasn't come round to demand that I stop using my name. Why not? Because a trademark refers to goods and services, not to just names or words w/o context.

"A trademark typically protects brand names and logos used on goods and services. A patent protects an invention. A copyright protects an original artistic or literary work. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product."

https://www.uspto.gov/trademarks-getting-started/trademark-process

clint said...

SGT Ted said...

"PC is just fascism pretending to be manners."

This needs to be a bumper sticker.

Owen said...

Clint: "...bumper sticker."

Copyright infringement claim teeing up in 3...2...1...

Expect a letter from Bob Ellison & Associates, LLC.

Bob Ellison said...

Owen, good arguments.

Why do we have trademarks, copyrights, and patents?

These seem like rights, intrinsic rights, to most people. They're not. They grant government privilege.. It'd be nice to think they're not government things, but they are government things.

We should be asking what use they serve, and how best they should be constructed. Copyright in particular has been disgustingly abused-- you can't record a damn song written a hundred years ago without getting a letter from the grandson of the widow of the writer of that 12-bar-blues song.

But again, I digress.

wholelottasplainin said...

Bob Ellison said...

"You register a trademark. The Government says OK, Jason Burgers (tm) are made by only this guy or anyone he licenses to make them.

Nobody can make Jason Burgers without your say-so. Otherwise you could sue for trademark infringement. George can make George Burgers, but he can't call them Jason Burgers, because the government steps in to help you sue George.

That's how it works. It's fascist because it puts government power in service of the business that wants to prevent competitors. That's really how fascism works."

&&&&&&&&&&&&&&&

Except that's NOT the way it works. If you register a trademark or copyright or are granted a patent, that means the government agrees you have an exclusive right to PREVENT OTHERS from infringing on the matter covered.

So: A trademark for Jasonburgers doesn't per se prevent anyone from making Jasonburgers.

Anyone can make them , but with the risk that you , the mark holder, will sue them if they use your trademark to advertise and sell those burgers.

The government doesn't pro-actively look for people infringing those rights ---YOU as the holder of the right---have to do it. Yes, you do it in court ---but in that case the government is acting as a referee. You still have to prove your case.

As for the current system being a sign of fascism, perhaps you should read the US Constitution:

"(Article I, Section 8, Clause 8). The clause states that the United States Congress shall have power "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." --wikipedia

That "promote the useful Arts" wording is really what the system is based on: if an inventor or author (or a person/business using a distinctive trademark or design that has commercial value), why should they NOT be able to protect others from copying the matter disclosed in the patent or reprinting the author's best-seller?

With trademarks, why should a licensed Red Sox franchisee have to compete with someone who sells knock-offs using the Red Sox logo?

(with patents, the standard is that the matter being claimed has to be new, useful and unobvious. If Big Pharma patents a miracle drug, after spending millions developing and testing it, why should they not have a "limited time" to recover their R&D expenses and make a profit?

Yes, the system is straining under recent rulings. AA raised some when discussing copyright extension Lennon's "Imagine".

But the principle is sound. It's not "fascism".

(grrrrr... missed typos requiring multiple deletes and reposts!! Sorry.)

Bob Ellison said...

With trademarks, why should a licensed Red Sox franchisee have to compete with someone who sells knock-offs using the Red Sox logo?

Because he or she can.

Who decides he or she can't compete?

The government, through the USPTO.

Jupiter said...

"We should be asking what use they serve, and how best they should be constructed."

You seem to think they should simply be dispensed with. Not sure I disagree.

The argument from a public interest for property generally, is that people will only invest the time and effort needed to make property productive if they can benefit from what it produces. Thus property protections are intended to increase economic productivity. In the case of patents, a further claim is that patent protection leads to people disclosing and licensing their inventions, rather than keeping them secret. In the case of copyright, the claim is that creators will not create if they can't protect their creations.

It is difficult to see how trademarks fit into that logic. So, question - what great (or minor) evil results from the abolition of trademark protection? Aside from the fact that it constitutes destruction of properties that some people have paid a lot of money for?

Jupiter said...

Say, and what about domain names? Should Althouse have the right to enlist the fascist government to defend against alternative claimants to althouse.blogspot.com?

wholelottasplainin said...

Bob Ellison, you're just repeating and repeating and repeating... offering no counter-arguments, just repetition...while you are both wrong on the facts AND you seem to think there's no such thing as an enforceable intellectual property right.

"Because he or she can." ---- no, they can't. And for good reason:

Copy another author's best-seller? OK with Bob! Doesn't matter if the writer spent years on that book!

Use the logo of a sports team, a ***logo which itself has commercial value***, to DECEIVE other people that your Chinese-knockoff jersey is the real deal? OK with Bob!

Label "little blue [sugar] pills" prepared in a filthy Vietnam factory as Viagra and sell them as the real thing?

Manufacture and sell bogus "Vuitton" bags, complete with the V logo printed all over them, and sell them as genuine? OK with Bob!


Why, those are all just examples of "competition".....right?


Bob would you happen to be a disciple of the French anarcho-syndicalist Proudhon? He argued that all property is theft. If you really think that, can I come by your house and take all your stuff? If not, why not?

Here's why: because the entire idea of "property" is a natural right. I don't have a right to YOUR property. You seem to think the fruits of my labor and creativity are not "property" and don't belong to me.

The Constitution is filled with natural-rights theory, and one is that certain intellectual property deserves special rights for a limited time. OTHERWISE the incentive to be creative and to devise methods, products, symbols and designs that "promote the general welfare" will be stifled.

You seem to think the abuses in copyright, trademark and patents mean the entire system should be jettisoned, not reformed.

Unpersuasive.



DanTheMan said...

Trademarks are fascism?
You sound like Jared Loughner and his government grammar conspiracy.

If I was your congressman, I'd be worried.

wholelottasplainin said...


Jupiter said...
Say, and what about domain names? Should Althouse have the right to enlist the fascist government to defend against alternative claimants to althouse.blogspot.com?

************************

There's already a forum for adjucating conflicts between trademarks ("Coca Cola") domain names (cocacola.com).

http://www.wipo.int/amc/en/center/faq/domains.html#7

AND for domain name disputes:

http://www.bitlaw.com/internet/domain.html

I'm sure Ms. Althouse would argue that her domain name is distinctive and has commercial value (clickthrough to Amazon, for example).

Jupiter also says:

"It is difficult to see how trademarks fit into that logic. So, question - what great (or minor) evil results from the abolition of trademark protection? Aside from the fact that it constitutes destruction of properties that some people have paid a lot of money for?"

***************

OK. Lets abolish trademarks for Google, General Motors, Amazon, Coca Cola, Facebook, etc etc.

ANYONE could use those trademarks, resulting in ...what? Counterfeits, fraud, confusion in the marketplace.....

The claim that people paid a lot of money for those trademarks IGNORES the fact that all those companies built themselves into global entities using those trademarks from the start---and the marks themselves built and maintained the brands, the marketplace recognition that helped them grow.

Think about buying a can of Coke. How would you ever be sure "It's the Real Thing"?

Bruce Hayden said...

@Jupiter - not really how it works. Domain names are pretty much "first come, first served", with some exceptions. Used to be that you could have .com domain names taken away from you if you didn't have a registered trademark, but that was, luckily, changed to also cover personal and corporate name. I have one such that I get a request or two a year from U.K. Firms (place name there), but it matches our corporate name, so we are safe.

You pretty much have to run it that way, because DNS has to consistently resolve domain names to the same IP addresses for the Internet to work as we expect it to. (And Blogger has to consistently resolve Althouse.blogspot.com to her blog to keep in business). Since .com address resolution is international, its control is by international agreement. National high level suffixes (such as .us, .uk. .ru, etc) are controlled by the corresponding nation.

Bob Ellison said...

Jupiter said, "So, question - what great (or minor) evil results from the abolition of trademark protection? Aside from the fact that it constitutes destruction of properties that some people have paid a lot of money for?"

The great evil of trademark protection, since you ask, is this:

Keep people from doing what they can do..

What good is done by trademark protection? That is the question you should be asking.

Owen said...

Bob Ellison: others have made the same argument but let me reiterate: if you read the Constitution on patents and copyrights you will see the rationale for these rights. To encourage inventive and creative activity. Which benefits everyone. Sometimes it even benefits the creator but not always by any means. That success depends on many other factors than the right to exclude others from practicing the invention too closely or copying the creative expression more or less verbatim and at length. Those rights are sometimes necessary but never sufficient. The market is the final arbiter.

Your version of the market is not the lightly-overseen one where intellectual property rights are recognized for a limited time in limited fields. Your market is tantamount to the jungle, and IMHO a sterile place it would be. The creative types would not bother investing their time and money in coming up with anything better, unless they could protect it as guilds did, through trade secrets.

In your world, I speculate that property rights generally would be abandoned. If somebody liked "your" car, they would take it and explain that they needed it more than you did. Likewise "your" house and "your" savings; all of these rights, no less than trademarks, need the courts --parts of the "fascist" government-- to enforce them against others.

Is your middle name Hobbes, by any chance?

Curious George said...

Pekin (IL) High School had the nickname Chinks until 1980. The team mascots were a male and female student dressed as Chinese persons wearing stereotypical Chinese attire. The mascots would strike a gong whenever the team scored. Yes, you read that right...1980!

Pekin is the county seat of nowheresville, and I would guess that the name Chinks came from the fact that they thought Pekin was the name of a city in China, because that's how they pronounced Peking.

As far as George Burgers...they're awesome. You'll never want Jason Burgers again.

TWW said...

Chief Wahoo can sleep easy.

Dust Bunny Queen said...

Bob Ellison, who really really doesn't seem to get it. Here is the definition of a trademark

A trademark, trade mark, or trade-mark[1] is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others,[2][3] although trademarks used to identify services are usually called service marks.[4][5] The trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings.


He asksWhat good is done by trademark protection? That is the question you should be asking.

The good is that it protects not only the trademark owner from being copied, ripped off....it also, and perhaps more importantly trademarking protects the consumer of the product or the user of the service.

For example. Pepsi has a distinctive design on the package. This is their trademark. If I want to buy a Pepsi and no other type of soda, I need to be assured that the logo on the can represents the 'real' Pepsi product and not some knock off swill made out of old melamine and sewage run off in China.

You think that may be an exaggeration or a joke, however, many pets died recently because the owners were conned into buying substitute products from China that mimicked the real product.

You want to know that when you are buying or using a product it is the REAL thing. Delco Batteries, McDonalds, Black Flag bug spray, Hanes underwear.

Getting the knock off, the imitation by someone who has stolen the logo may be just a big disappointment, like when your tightey whiteys don't fit properly....or it can kill you when the product blow up in your face or you get food poisoning.

That is the answer to your incomprehensible objection to trademark protection.

Bob Ellison said...

Owen, no Hobbes here.

What would my world be like? You seem to know it, I guess, though you describe it the way my cat might.

Bob Ellison said...

Dust Bunny Queen, so just today, I invented a dog-pooper-picker-upper. I call it Bob-Poop. I demand that registered trademark.

Dust Bunny Queen said...

I call it Bob-Poop. I demand that registered trademark.

And you have every right to do so, as long as your trademark/logo doesn't mimic the trademark of an other in such a way as to be indistinguishable or confusing to the public.

I think you are confusing Trademarking with patenting and with copyrighting.

Maybe you should educate yourself and get UNconfused before you continue on.

Get Smart. not the TV show just learn.

Steven said...

Say, and what about domain names?
Most domain names are listings in a privately-created, -owned, and -maintained database. (There was some government money paid to Jon Postel's employer, which was the basis for a US government claim of ownership, but that control has been ceded, so.) Accodingly, they're decided by the private consortium in charge of the database.

If you want to unilaterally use amazon.com, you can, in fact, set up your own alternative root server where amazon.com points to your webserver. Nobody else will use your root server if you do, but that's their choice (or, more usually, the choice of their ISP which they don't even know they can easily override).

Bad Lieutenant said...

What good is done by trademark protection? That is the question you should be asking.

Bob, you can be as elliptical and you like, but the pressure to clarify and justify is on you, because as long as this seems like the nonsense it is(/seems), you're not going to get what you want. As it is, on this one you're the guy with the End Is Near sandwich boards.

Bob Ellison said...

Why? Why should I have the right to that trademark?

What's the moral, legal, or philosophical concept behind that?

Jupiter said...

"What's the moral, legal, or philosophical concept behind that?"

Hmmmm.... There appear to be two popular answers to that question.

1 - There is a moral right to what you have created.

That seems to be a claim that neither has nor needs evidence. Believe it or don't.

2 - It is useful in commerce to know the provenance of the things one is purchasing.

I think that is fairly persuasive, but would seem to indicate that trademarks are not so much property as definitions. You can't say that you are Microsoft because -- you're not! Microsoft is! They got there first, and Microsoft now means them.

Of course, trademarks can be sold .....

The Godfather said...

What public benefit does trademark protection provide? I mean this as a real question, not a rhetorical one. I'd really like to know.

It's fun hearing the ultra-libertarian arguments against trade marks: Let the free market decide. It reminds me of my libertarian friends in college who argued that the government shouldn't build lighthouses: After a few ships have ended up on the rocks, the maritime insurance companies would build the lighthouses. Lots of fun, lots of fun.

Most of the pro-trademark arguments here seem to be based on consumer protection: If you don't give Microsoft a trademark, then other companies will sell you "Microsoft" software that crashes your computer. The problem -- A problem -- with that argument is that suppose the "counterfeit" item works just as well as the real Microsoft item. The consumer isn't injured, but under trademark law that's not a defense. There's got to be more to it than consumer protection.

Take the Redskins -- the professional football team, not the potatoes. They want to sell souvenirs with the "genuine" Redskins logo for a substantial mark-up over what a competitor would charge for the identical item that couldn't legally be trademarked as a "genuine" Redskins item. Why does the Redskins' understandable desire to do that deserve government protection? They didn't create some unique penannt or Amerindian doll or cap or kid's football helmet; they created a football team. Did the prospect of trademark protection encourage them to develop a football team? I agree that someone else shouldn't be allowed to go around selling tickets or television rights to "Redskins" football games when it's not the real Redskins team. But that doesn't establish that someone else shouldn't be able to sell "Redskins" crap.

So I ask: what public benefit does trademark protection provide?

Dust Bunny Queen said...

Take the Redskins -- the professional football team, not the potatoes. They want to sell souvenirs with the "genuine" Redskins logo for a substantial mark-up over what a competitor would charge for the identical item that couldn't legally be trademarked as a "genuine" Redskins item. Why does the Redskins' understandable desire to do that deserve government protection?

OK....suppose I'm a die hard Redskins fan. If I buy gear with that trademark, I want my money and the profits to go to support the Redskins and not some other entity.

Red Cross. You want to give money to the Red Cross because they saved your cat, or something. To protect you from being scammed and your donation going to a Nigerian Prince, the logo and company persona of THE Red Cross is protected.

It protects YOU and them.

Why is this so hard for some people to get? Seriously?

Dust Bunny Queen said...

As to why the government is involved. We are not generally talking about a lemonade stand or a little mom and pop restaurant in a small town. Trademarks protect the consumer and owner of the product and service from encroachment, fraud nationwide and internationally.

The scope of the commerce or of the enterprise need to rely on more than just a one to one event. To leave it to having to defend each and every instance of infringement nation wide, world wide and to have to begin each battle from "scratch" would take all the resources of many companies.

The government is large enough to provide the framework for the protection.

Jupiter said...

"But that doesn't establish that someone else shouldn't be able to sell "Redskins" crap."

OK, but your point seems to be, that quality is at issue when buying operating system software, but not when buying "Redskins crap". But if the law is to take that into account, it would need to carefully delineate those situations where quality is and is not an issue. Presumably, the public advantage of allowing knockoffs of Redskin crap would be a price advantage. But can there really be a price advantage if there is no quality advantage? What difference does it make how much it costs, if it isn't actually good for anything?

I guess my point is that simple laws that are easy to enforce are better, and the advantage to be gained from unrestricted sale of Redskin crap is not large enough to outweigh the disadvantage of, for example, discovering that you can't sue the company you thought you could, because they didn't make the product you bought because it had their label on it.

robother said...

Bill Maher can finally register the trade name of his house band.

Josephbleau said...

Now I want Chief Iliniwak back.

wholelottasplainin said...

Jupiter: " Why does the Redskins' understandable desire to do that deserve government protection? They didn't create some unique penannt or Amerindian doll or cap or kid's football helmet;

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YES...THEY....DID. The designs, colors and the words on those designs and colors, were created by the Redskins organization or people they employed to do so. The public has come to associate those designs, colors and words with the team itself, and is willing to pay $$ to buy clothing etc. bearing them.

Ask yourself: would people buy plain white T-shirts from the Skins for a premium price? Probably not.

Because the value to them is in the trademarked stuff, which they associate with their team---in part because they actually buy them from that team or its licensees.

To the extent that counterfeiters steal those trademarks they are deceiving the Redskin customers. Yes, the guy who buys a cap outside the stadium might not know he's getting a fake, but the counterfeiter is depriving the franchise of the commercial value of their business.


A related example: Before Digital cameras came along and destroyed them, Eastman Kodak "owned" the photographic film market; for about 75 years they were the Gold Standard for such film. Not only did they have Trademarks in the words "Kodak, Ektachrome, Kodachrome", they had a trademark on the distinctive yellow color of the boxes they were sold in, right down to the wavelength that color gave off with a spectrometer.

If you wanted to buy good photo film you looked for that box.

Perhaps you should introduce yourself to the idea of brands and their value.



Oh, and about Microsoft products being copied: if you knowingly buy a bootlegged copy of their s/w you KNOW you can't get support for it from the "real" Microsoft. But what if you are deceived by the bootlegger into thinking that "he" actually IS Microsoft? You've been defrauded, and you might not know that until your business is disrupted and you learn you're w/o recourse. Yeah, you could sue the bootlegger, but that probably won't get your s/w fixed.

virgil xenophon said...

I guess the famous 60s atlantic-coast college circuit rock band "The Thirteen Screamin' Niggers" is safe now if they want to get together for a retrospective come-back. :) (And they really were great, btw)

Jay Elink said...

virgil xenophon said...
I guess the famous 60s atlantic-coast college circuit rock band "The Thirteen Screamin' Niggers" is safe now if they want to get together for a retrospective come-back. :) (And they really were great, btw)

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And what about The Fugs, before them?

gregq said...

I'm wondering if the presence of "President Trump" is causing the lefties on the Court (unlike the Lefties out here in the rest of the country) to reconsider their love o Gov't control of speech.

It would be good if that was the case

Mike said...

Why? Why should I have the right to that trademark?

What's the moral, legal, or philosophical concept behind that?


Intellectual property, that like real property, can only be owned by one entity, is the concept. Our founding fathers recognized that ideas are valuable and put into our Constitution the means to protect ideas that have been expressed in writing or other works. This was not unique to the USA, as Common Law also recognized ownership of publishing rights, etc. That's the legal and philosophical basis for copyright, patent and trademark law.

The moral basis can be expressed as the right to the fruits of ones own labor. The person who writes a song should have the ability - at least for a limited time - to benefit from the fruits of that expression, to the exclusion of others.

Currently, China is making millions of copies of works they do not own, did not produce, and do not have the right to make money from. This deprives the creators of the works the fruits of their labor. In this instance, the government should be active in helping to prevent the robbery of its citizens by a foreign entity.

Perhaps those rights should be more limited, but they exist to create a framework within which the creators of content can be assured they will be compensated for their production. This is known as civilization.

EMyrt said...

Josephbleau said...

Now I want Chief Iliniwak back.
6/19/17, 6:09 PM

Illiniwek. Like the real Indian tribe. From memory. I'm an alum.