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To counteract this, we need some form of vexatious litigation charge for copyright and trademarks - if you try to assert ownership over something you obviously

To counteract this, we need some form of vexatious litigation charge for copyright and trademarks - if you try to assert ownership over something you obviously don't own (as decided by a jury), you lose the original trademark you were trying to protect into the public domain.

kube-system 4y ago
The idea of punishing a mark holder by invalidating their mark presumes that trademarks exist as a benefit to the mark holder. But they don’t. They exist as a benefit to consumers. This would be a misplaced punishment.
- Moissanite 4y ago
  I presume your point here is that a trademark represents "authenticity", which is valuable to consumers. That's a fair concern, but clearly a large part of the benefit does in fact accrue to the holder - otherwise they wouldn't spend a cent protecting it.
  - kube-system 4y ago
    Yes, but the legal construct of trademark does not exist for that reason. They exist only to facilitate fair commerce.
- smolder 4y ago
  Trademarks benefit both consumers and mark holders. We don't want consumers to be tricked into buying subpar counterfeits, nor do we want infringers to exploit consumer trust in the trademark to steal business from the mark holder or to undermine that trust.
  - kube-system 4y ago
    A trademark could benefit the company, but that’s a secondary downstream effect, not a requirement for a valid mark. Trademarks for horrible and awful products with terrible reputations are still entirely valid despite not being a benefit to the mark holder. On the other hand, trademarks must provide identifying benefit to consumers, in order to be valid. Because this is the primary legal purpose and justification.
    - xbar 4y ago
      Then why is it so profitable for mark holders to sue everyone so broadly when there is no benefit to consumers? No one thought Tony the Tiger lived in Exxon gasoline, and yet the lawsuit exists.
      - kube-system 4y ago
        Because it is exceedingly rare that a law only does or is claimed to apply to exactly what it intends to do without other consequences. There’s always some lawyer who will claim that a law applies even if it it found that doesn’t. In fact, this is entirely normal. Legal cases have two sides and only one will be found right. The motivations of the lawyers in your examples are entirely different than the motivations of the lawmakers who wrote trademark law, and the judiciary that enforces it. Let’s be clear: nobody created trademark law for the purpose of a cereal company getting rich off suing petroleum companies. In fact, those who established trademark law purposefully limited trademarks to a particular good or service exactly to prevent that.
        mtrower 4y ago
        So if trademarks aren’t helpful to businesses, not intended to be helpful to businesses, why file for one at all?
    - smolder 4y ago
      You're right, but I think the secondary effect is important. Hypothetically, if there was no intent to protect mark holders, the law could work differently: As long as the trademark is used for equivalent products, and there is no harm to the consumer, then it wouldn't matter who used the trademark. You'd think I'd be able to start a company to sell GE toaster ovens made in my personal back yard factory, if the end result was equivalent to what GE sells.
      - kube-system 4y ago
        That’s why courts recognize trademark dilution as a valid reason to invalidate someone’s trademark. Consumers naturally start using prominent marks genetically as the difference between products disappears. The practical problem is that there’s no real way to test this until a case is brought. You might be able to bring your own crock-pot to market, but unfortunately the only tool to legally evaluate whether that’s okay is the legal system itself. I’m not sure there’s a good way around that other than making the legal system more accessible in general.

kube-system 4y ago

The idea of punishing a mark holder by invalidating their mark presumes that trademarks exist as a benefit to the mark holder. But they don’t. They exist as a benefit to consumers. This would be a misplaced punishment.

Moissanite 4y ago
I presume your point here is that a trademark represents "authenticity", which is valuable to consumers. That's a fair concern, but clearly a large part of the benefit does in fact accrue to the holder - otherwise they wouldn't spend a cent protecting it.
- kube-system 4y ago
  Yes, but the legal construct of trademark does not exist for that reason. They exist only to facilitate fair commerce.
smolder 4y ago
Trademarks benefit both consumers and mark holders. We don't want consumers to be tricked into buying subpar counterfeits, nor do we want infringers to exploit consumer trust in the trademark to steal business from the mark holder or to undermine that trust.
- kube-system 4y ago
  A trademark could benefit the company, but that’s a secondary downstream effect, not a requirement for a valid mark. Trademarks for horrible and awful products with terrible reputations are still entirely valid despite not being a benefit to the mark holder. On the other hand, trademarks must provide identifying benefit to consumers, in order to be valid. Because this is the primary legal purpose and justification.
  - xbar 4y ago
    Then why is it so profitable for mark holders to sue everyone so broadly when there is no benefit to consumers? No one thought Tony the Tiger lived in Exxon gasoline, and yet the lawsuit exists.
    - kube-system 4y ago
      Because it is exceedingly rare that a law only does or is claimed to apply to exactly what it intends to do without other consequences. There’s always some lawyer who will claim that a law applies even if it it found that doesn’t. In fact, this is entirely normal. Legal cases have two sides and only one will be found right. The motivations of the lawyers in your examples are entirely different than the motivations of the lawmakers who wrote trademark law, and the judiciary that enforces it. Let’s be clear: nobody created trademark law for the purpose of a cereal company getting rich off suing petroleum companies. In fact, those who established trademark law purposefully limited trademarks to a particular good or service exactly to prevent that.
      - mtrower 4y ago
        So if trademarks aren’t helpful to businesses, not intended to be helpful to businesses, why file for one at all?
  - smolder 4y ago
    You're right, but I think the secondary effect is important. Hypothetically, if there was no intent to protect mark holders, the law could work differently: As long as the trademark is used for equivalent products, and there is no harm to the consumer, then it wouldn't matter who used the trademark. You'd think I'd be able to start a company to sell GE toaster ovens made in my personal back yard factory, if the end result was equivalent to what GE sells.
    - kube-system 4y ago
      That’s why courts recognize trademark dilution as a valid reason to invalidate someone’s trademark. Consumers naturally start using prominent marks genetically as the difference between products disappears. The practical problem is that there’s no real way to test this until a case is brought. You might be able to bring your own crock-pot to market, but unfortunately the only tool to legally evaluate whether that’s okay is the legal system itself. I’m not sure there’s a good way around that other than making the legal system more accessible in general.