The Nature, Properties, and Characteristics of Goods (Igloo Coolers case)

by Stephan Kinsella on May 17, 2026

Classificationism, Legislation, Copyright
Federal Judges Aren’t Real Judges
Another Problem with Legislation: James Carter v. the Field Codes
The Non-Aggression Principle as a Limit on Action, Not on Property Rights; Individuals are Responsible for Actions, not “for Their Property”; Property rights are not obligations or responsibilities
On Conflictability and Conflictable Resources
The “Ontology” Mistake of Libertarian Creationists
Hardy Bouillon, A Note on Intellectual Property and Externalities
Stephan Kinsella, Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, in Legal Foundations of a Free Society [LFFS] (Houston, Texas: Papinian Press, 2023), n30.
Reply to Van Dun: Non-Aggression and Title Transfer, in LFFS
Sarah Isgur and David French, “SCOTUS Clears Way for Alabama to Use Congressional Map,” Advisory Opinions (May 14, 2026), at 38:21
Vericool World LLC v. Igloo Products Corp., No. 24-192 (9th Cir. May 6, 2026) (GovInfo; pdf)
John Rearick, “Other Barks & Bites for Friday, May 8: … Split Ninth Circuit Panel Nixes False Representation Claims,” IPWatchdog.com (May 8, 2026)
Rebecca Tushnet, “Dastar bars false advertising claim against “first of its kind” ads,” Rebecca Tushnet’s Blog (Dec. 15, 2023)
Jeff Greenbaum, “Who Made the “First” Biodegradable Cooler?,” Advertising Law Blog, Frankfurt Kurnit Klein & Selz PC (May 11, 2026)

Interesting recent case discussed by Sarah Isgur and David French in Advisory Opinions:¹ Vericool World LLC v. Igloo Products Corp. (9th Cir. May 6, 2026),²

The majority opinion and dissent differ on how to determine, and the relevance of, the “nature,” “characteristics,” or “qualities” (and “geographic origin”) of a good (a thing). This is relevant here because

Vericool World LLC, a cooler manufacturer, claims Igloo Products Corporation said something uncool—wrongfully taking credit as the first to market a biodegradable cooler. We must decide whether Igloo’s statements are unlawful under the Lanham Act. The Lanham Act creates a cause of action against a defendant who ‘misrepresents the nature, characteristics, qualities, or geographic origin of a good.’

So the question is whether the “geographic origin” of a cooler is one if its “characteristics,” that define its “nature.” The judges venture a bit into philosophy to explain their reasoning to back up their respective holdings:

Majority Opinion (Judge R. Nelson, joined by Judge Hamilton):

Vericool World LLC, a cooler manufacturer, claims Igloo Products Corporation said something uncool—wrongfully taking credit as the first to market a biodegradable cooler. We must decide whether Igloo’s statements are unlawful under the Lanham Act. The Lanham Act creates a cause of action against a defendant who ‘misrepresents the nature, characteristics, qualities, or geographic origin of a good.’ 15 U.S.C. § 1125(a)(1)(B). [A] ‘characteristic’ must be an observable aspect of the ‘tangible product’ rather than the ‘ideas or communications that goods embody or contain.’ Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31 (2003). Because Vericool’s claim concerns the origin of an idea embodied in its coolers rather than the characteristics of the product itself, we conclude it is not cognizable under the Lanham Act. We affirm the district court’s grant of summary judgment.

Dissent (Judge Bumatay):

The question of what is the ‘nature’ of a thing has vexed philosophers, physicists, and poets for millennia. Take the Ship of Theseus. Plutarch famously recounts the fate of Theseus’s ship after the hero returned from his epic voyage. According to Plutarch, the ship was preserved by the Athenians for centuries, a testament to its navigator. But over time, the Athenians had to replace the ship’s timbers as they fell into disrepair plank by plank. Eventually, the ship was composed entirely of new wooden planks, stripped of any original wood. The critical question: what was the nature of the preserved vessel? Was it still the ship of Theseus, or was it a new ship, a replica of the original? At the heart of this thought experiment is whether something can be more than its tangible parts. Thankfully, we don’t need to settle this age-old question here. Instead, our job is simply to answer whether the ‘nature,’ ‘characteristics,’ or ‘qualities’ of a thing includes its intangible nature, characteristics, or qualities under the plain meaning of those words. The answer of course is yes. So, like the identity of the Ship of Theseus, whether Vericool’s cooler was the first or the original goes to its nature, characteristics, or qualities. Indeed, according to Vericool, Igloo’s allegedly false assertion implied that its cooler was an imitation or ‘knockoff’ of Igloo’s when of course the opposite was true.

There is no “right” or “correct” answer here; this is just fake statist judges interpreting the arbitrary text of an unconstitutional³ and largely unjust statute. ⁴ But it calls to mind a point I have made before:

IV.F “Resources, Properties, Features, and Universals”

As noted above (see note 31), confusion about the IP issue sometimes stems from identifying “property” with the owned resource. People then get bogged down in loaded or confused questions like, “Are ideas property?” If one keeps in mind that the question is not what is property, but rather who is the owner of a conflictable resource, then the IP mistake is harder to make. A related mistake stems from the failure to understand that all human rights are property rights and all property rights just are rights to the exclusive control of a given scarce (conflictable) resource.^[62] But every property right is an ownership right held by a particular person or owner with respect to a particular conflictable resource. It is the actual resource itself which is owned, not its characteristics.

For example, if you own a red car, you own that car, but you do not own its color; you do not own red or redness. If owning a red car meant you owned its characteristics, you would own not only that particular car, but its age, weight, size, shape, color, and so on, and, thus, would thereby have an ownership claim over any other object that is red, and so on. This would amount to reassigning ownership rights in someone else’s red car to you, even though he owns that car and you did not homestead it or obtain it by contract. Likewise, information cannot be owned since it is not an independently existing thing; information is always the impatterning of an underlying medium or carrier or substrate, which is itself a scarce resource that has an owner.^[63] If I own a copy of Great Expectations, I own that physical object: paper and glue and ink. It has various characteristics: an age, a size, a shape, and a certain arrangement of ink on its pages—the way the ink is impatterned so that it represents letters and words and meanings to someone who can read and who can observe the features of the book. But just as you don’t own the color of your car, you don’t own the way an object is arranged or shaped.^[64]

^[62] To be even more precise, I would say that a property right is not a right to use a resource, but a right to exclude others from using a resource. In practical terms this gives the owner the ability to use it as he sees fit so long as he is not using trespassing on others’ property rights. This follows from the analysis in Kinsella, “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” StephanKinsella.com (Jan. 22, 2010) and idem, “IP and Aggression as Limits on Property Rights: How They Differ,” StephanKinsella.com (Jan. 22, 2010). However, this nuance need not concern us here. See also “What Libertarianism Is” (ch. 2), p. 32; George Mavrodes, “Property,” in Samuel L. Blumenfeld, Property in a Humane Economy (LaSalle, Ill.: Open Court, 1974), p. 184; “A Libertarian Theory of Contract” (ch. 9), n.1; Connell v. Sears, Roebuck Co., 722 F.2d 1542, 1547 (Fed. Cir. 1983) (“the right to exclude recognized in a patent is but the essence of the concept of property”), citing Schenck v. Nortron Corp., 713 F.2d 782 (Fed. Cir. 1983). Further, property rights are rights as between human actors, but with respect to particular resources. See “A Libertarian Theory of Contract” (ch. 9), n.1.

^[63] J. Neil Schulman argued for years for a form of IP known as “logorights.” Oddly, perhaps partially in response to my relentless criticism of his flawed argument, he eventually changed his argument to argue for “media-carried property,” thus implicitly acknowledging that he was in favor of property rights in characteristics, or features, of owned objects, i.e., universals. See “Introduction to Origitent” (ch. 16) and “Conversation with Schulman about Logorights and Media-Carried Property” (ch. 17).

^[64] Even the pro-IP Ayn Rand implicitly acknowledged this. As she wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

See Kinsella, “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging,’” quoting Ayn Rand, “The Metaphysical and the Man-Made,” in Philosophy: Who Needs It (New American Library, 1984), p. 25. See similar quotes by Rothbard, J.S. Mill, and Mises in ibid; and Reisman, “Progress In a Free Economy.”

Neil Schulman and I bat these ideas around in “Conversation with Schulman about Logorights and Media-Carried Property” (ch. 17). (( Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, Part IV.F, “F. Resources, Properties, Features, and Universals”. See also KOL475 | ECON104 (Saifedean Ammous and Saylor Academy) (“if I have a red ball and I own the ball, that means I own its features or properties, like its redness. Does that mean I own everyone else’s red thing…?”); KOL470 | Intellectual Property & Rights: Ayn Rand Fan Club (“Your car is red, but you don’t own that feature of the car, that characteristic or property of the car. You don’t own its redness.”); The “Ontology” Mistake of Libertarian Creationists (uses the redness/red car analogy); Patrick Smith: Un-Intellectual Property (discusses ownership of the object vs. its features/characteristics, giving a red balloon/redness example). ))

And:

as I pointed out before,⁵ bitcoin cannot be owned since it does not “exist” as an independent material thing—but which is instead just the conceptually understood unit of an abstract concept of a spreadsheet or ledger, essentially a data or information structure that is also was just stored on or impatterned in some existing material substrate or carrier, which itself has independent existence and as a scarce thing, an owner according to standard property allocation principles (original appropriation and contractual transfer)—and because it does not exist in this sense it cannot be possessed and also cannot be owned ….⁶

As to why the word “property” is used to refer to the right to control resources (really, a right to exclude others, as noted previously), and why the word “property” is erroneously and confusingly used to refer to the resource or thing owned itself, as in “that car is my property”:

A system of property rights specifies how to determine which individuals own—have the right to control—particular scarce resources. By having a just, objective rule for allocating control of scarce resources to particular owners, resource use conflicts may be reduced. Nonowners can simply refrain from invading the borders of the owned resources—that is, avoid using the thing without the owner’s consent.^[1] Using a property rights scheme, it is at least possible for conflict to be avoided or reduced. This is the very purpose and function of property rights: to respond to the practical problem of conflict in a world of multiple actors.^[2]

Under the libertarian approach, people are self-owners, that is, they own their bodies. As for external resources, that is, previously-unowned conflictable resources, the first to use an unowned scarce resource—the homesteader—becomes its owner.^[3] This is called original appropriation or, sometimes, usually in the case of real (immovable) property, homesteading. The first possessor has better title in the resource than any possible challenger, who is always, with respect to him, a latecomer.^[4]

^[1] As noted previously, technically speaking, property rights are best viewed as rights to exclude others from using a resource rather than a right to use; and the term property, to be precise, should be used to refer to the (ownership) relationship between a human owner and an object (scarce, conflictable resource), not to the owned material object itself. Thus, your car is not your “property”; you have a property right in your car. On all this, and on the use of terms like conflictable or rivalrous to refer to ownable scarce resources, see Kinsella, “On Conflictability and Conflictable Resources,” StephanKinsella.com (Jan. 31, 2022); “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward” (ch. 15), at n.62; and “What Libertarianism Is” (ch. 2), at n.5.

Even more precisely still, property rights can be conceived of as rights between human actors, but with respect to particular resources, although this distinction makes little difference for our present purposes. On this point see, e.g., Emanuele Martinelli, “On Whether We Own What We Think” (draft, 2019), p. 6 (“Property is a relation between a person and a thing.”); Svetovar Pejovich, “Towards an Economic Theory of the Creation and Specification of Property Rights,” in Henry G. Manne, ed., Economics of Legal Relationships (West Group, 1975), p. 40 (emphasis in original) (“[P]roperty rights are defined not as relations between men and things but, rather as the behavioural relations among men that arise from the existence of things and pertain to their use.”; quoted in Boudewijn Bouckaert, “What is Property?”, Harv. J.L. & Pub. Pol’y 13, no. 3 (Summer 1990): 775–816, at 795); Andrew Koppelman, Burning Down the House (St. Martin’s Press, 2022), p. 79 (“It’s sometimes said that property is a relation between a person and a thing, but that’s confused. Property rights are relations between people. If I legitimately own something (rather than merely possessing it, as might be true of stolen goods), everyone else on the planet has an obligation to keep their hands off it. If that’s going to be true, then there has to be some reasonable basis for thinking that they have that obligation.”); and Alex Kozinski, “Of Profligacy, Piracy, and Private Property,” Harv. J.L. & Pub. Pol’y. 13, no. 1 (Winter 1990): 17–21, p. 19:

But what is property? That is not an easy question to answer. I remember sitting in my first-year property course on the first day of class when the professor … asked the fundamental question: What are property rights? … I threw up my hand and without even waiting to be called on I shouted out, “Property rights define the relationship between people and their property.”

Professor Krier stopped dead in his tracks, spun around, and gave me a long look. Finally he said: “That’s very peculiar, Mr. Kozinski. Have you always had relations with inanimate objects? Most people I know have relations with other people.”

That was certainly not the last time I said something really dumb in class, but the lesson was not lost on me. Property rights are, of course, a species of relationships between people. At the minimum, they define the degree to which individuals may exclude other individuals from the use and enjoyment of their goods and services….

See also “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward” (ch. 15), at n.62; and “What Libertarianism Is” (ch. 2), at n.5 and Appendix I.

^[2] See “What Libertarianism Is” (ch. 2); and other references in note 4, below.

^[3] See John Locke, Second Treatise on Civil Government (1690), chap. 5, “Of Property”; “What Libertarianism Is” (ch. 2); “How We Come to Own Ourselves” (ch. 4); “A Libertarian Theory of Punishment and Rights” (ch. 5); Kinsella, “Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022).

^[4] The owner of a given resource is said to have a title to the resource, i.e., is entitled to use it. It is a property right since it becomes an extension of the owner’s ability to interact with the world, i.e., one of his attributes or “properties”; he is the proprietor or has a proprietary interest in the thing. As Bouckaert writes:

[T]he definition of property is simultaneously simple and complex. It is simple because we can distinguish a generally accepted common-sense notion of property; that is, something that belongs to somebody in a legitimate way, something that is “proper” to somebody.

Boudewijn Bouckaert, “What is Property?”, Harv. J.L. & Pub. Pol’y 13, no. 3 (Summer 1990): 775–816, at 775.

On the function of property rights, see generally Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Auburn, Ala.: Mises Institute, 2010; www.hanshoppe.com/tsc), chaps. 1, 2, and 7, esp. pp. 13–15 & 18–30, discussing notions of scarcity, aggression, norms, property, and justification; idem, “Of Common, Public, and Private Property and the Rationale for Total Privatization,” in The Great Fiction: Property, Economy, Society, and the Politics of Decline (Second Expanded Edition, Mises Institute, 2021; www.hanshoppe.com/tgf). See also the discussion of Hoppe’s work on this topic in “Defending Argumentation Ethics” (ch. 7). On the prior-later distinction, see “What Libertarianism Is” (ch. 2), at notes 32–36 and accompanying text, et pass.; “Defending Argumentation Ethics” (ch. 7), the section “Objective Links: First Use, Verbal Claims, and the Prior-Later Distinction.”⁷

One more note: As I noted previously, it might be better to use the terms material and immaterial instead of tangible and intangible to distinguish between these types of things:

In AIP [Against Intellectual Property] I sometimes used the term “tangible” to indicate scarce resources that can be subject to property rights. (I’ve also sometimes used the term corporeal, a civil-law term.) Hardy Bouillon argues that it might be more precise to focus on the difference between material vs. non-material goods, rather than tangible vs. non-tangible goods, as the touchstone of things subject to property rights. As Bouillon writes:

Though some speak exclusively of tangible and non-tangible goods, I prefer to talk of material and immaterial goods.… The point about material goods is not that they are tangible, for some are not. For instance, atoms and many other small material units are not tangible; they are identifiable only indirectly, though this does not prevent us from calling them material.

Hardy Bouillon, “A Note on Intellectual Property and Externalities,” Mises Daily (Oct. 27, 2009), previously published in Jörg Guido Hülsmann & Stephan Kinsella, eds., Property, Freedom and Society: Essays in Honor of Hans-Hermann Hoppe (Auburn, Ala.: Mises Institute, 2009). I see some merit in his argument, though as noted above I think the essence of what makes some thing a possible subject of property rights is whether it is conflictable or not.⁸

But this is not very important here.

However, in any case, the fact that a human actor-owner does not own the characteristics or properties of a resource does not mean that these properties cannot be understood, identified, and communicated and relevant to issues of fraud, contractual terms, and so on. I brought this up in my response to Frank van Dun’s (confused) criticism of the “libertarian legalism” in my arguments opposing all forms of intellectual property (IP) including trademark law. In AIP, I had previously criticized trademark law because it does not require a showing that any consumer was defrauded, but only that there is a likelihood of consumer confusion. I gave a whimsical example:

Suppose some Lachmannian changes the name on his failing hamburger chain from LachmannBurgers to RothbardBurgers, which is already the name of another hamburger chain. I, as a consumer, am hungry for a RothbardBurger. I see one of the fake RothbardBurger joints run by the stealthy Lachmannian, and I buy a burger. Under current law, Rothbard, the “owner” of the RothbardBurgers trademark, can prevent the Lachmannian from using the mark RothbardBurgers to sell burgers because it is “confusingly similar” to his own trademark. That is, it is likely to mislead consumers as to the true source of the goods purchased. The law, then, gives a right to the trademark holder against the trademark infringer.

In my view, it is the consumers whose rights are violated, not the trademark holder’s. In the foregoing example, I (the consumer) thought I was buying a RothbardBurger, but instead got a crummy LachmannBurger with its weird kaleidoscopic sauce. I should have a right to sue the Lachmannian for fraud and breach of contract (not to mention intentional infliction of emotional distress and misrepresentation of praxeological truths). However, it is difficult to see how this act of fraud, perpetrated by the Lachmannian on me, violates Rothbard’s rights. The Lachmannian’s actions do not physically invade Rothbard’s property. He does not even convince others to do this; at most, he may be said to convince third parties to take an action within their rights, namely, to buy a burger from the Lachmannian instead of Rothbard. Thus, it would appear that, under libertarianism, trademark law should give consumers, not trademark users, the right to sue trademark pirates.

Van Dun argued that “it is … difficult to see how trademark piracy could violate the consumer’s rights if it was not a violation of the trademark holder’s right.”⁹ He argues that, under my theory, one cannot say that the consumer has a fraud or breach of contract claim:

According to Kinsella, the consumer supposedly is defrauded because the L-Burger chain misrepresented itself to the consumer. The latter therefore should have a right to sue the L-Burger chain for “fraud and breach of contract.” That is a strange conclusion, for it is not at all clear what contract L-Burger breached. The consumer presumably got what he paid for: a burger. If L-Burger acted within its legal rights under the Kinsella Code in using the R-Burger trademark, the consumer should know that a trademark carries no legally relevant information. Kinsella’s argument—the consumer thought he bought an R-Burger, but instead got a crummy L-Burger—is simply irrelevant. The consumer’s expectations would have been equally frustrated if he had bought at R-Burger when, unbeknownst to him, that chain had hired another chef with the same tastes as his counterpart at L-Burger or had changed its production processes or suppliers. Should any of these things also constitute a violation of the consumer’s rights?

As I wrote in response:

My view that the consumer has a fraud or breach of contract claim is obviously based on a theory of contract contained in an article published after the intellectual property article.^[19] I believe Van Dun is incorrect that my non-aggression-principle-compatible legal theory cannot support a fraud or breach of contract claim in the context noted above.

As explained more fully in my contract theory chapter, libertarianism maintains that the owner of a scarce resource has the right to use the resource and to dispose of it. The owner is the first possessor (homesteader) or someone who legitimately acquired the property from the first possessor (contract). Having the right to use property implies one may choose to exclude others from it, permit them to use or borrow it, give or sell title to another, or abandon it. If you own something, you can use it, hoard it, share it, destroy it (abuse), sell it (alienate) or give or lend it to another, or abandon it. One’s choice whether to sell something or lend it, for example, obviously must be manifested in some way. Clearly, social interaction and property exchanges presuppose the ability of the parties to communicate with each other.

It is the owner’s consent that distinguishes permitted use from trespass. If my neighbor walks to my front door to borrow a cup of sugar, she has implied permission to use my sidewalk and doorknocker for this purpose because of default rules in the community that can be relied on if not contradicted. This is how language and communication work. But if I tell her she is not welcome on my property, then she is a trespasser if she steps on it. Clearly, the manifested or communicated consent of the owner is relevant as to whether the use of property is permissible—whether it is a form of trespass or theft.

This is also true for loans and exchanges of title. If I lend my car to someone, the permission must be communicated to him somehow. For example, I can lend my car to my brother. His use is not trespass since I consented to it. If a random stranger takes my car and uses it, we call that theft because I did not consent to it.

But since consent is communicated and can be withheld, it need not be all or nothing—a loan need not be a permanent gift. The consent given to others to use one’s property can be conditional. For example, it can be limited in time or in other ways. If I lend my car to my brother to go to lunch and he drives off to Canada in it for a month-long vacation, he is now using my car without my consent, and he knows this. At this point, he is identical to the thief or other trespasser. The question to be asked is always: Did the owner consent to the other’s use of the property? If so, it is permissible and rightful, since an owner can allow others to use his property. But if not, it is a type of theft or trespass. And clearly, determining whether consent was granted presupposes the possibility of communication.

Now, when someone sells or buys an item, the sale or purchase can be, and usually is, conditional. For example, if I buy a candy bar for a shilling from a vendor, I transfer title to my shilling to the vendor, and he transfers title to the candy to me. Other customary assumptions are viewed as implied conditions on the title transfers, but they can also be made explicit or they can contradict default assumptions (sometimes called suppletive law). I might state that the title to my coin transfers only if the candy bar has such-and-such property (e.g., it is unopened or fresh, or not laced with poison; although these would probably be default or implied conditions anyway). Therefore, the vendor receives my consent to use and take title to the coin only if these conditions are met. If the vendor knowingly sells me a five-year-old piece of chocolate, then the condition for transferring title to the coin to him has simply not been met, and he is aware of this. So the vendor would be aware that he does not have the right to use or keep the coin—just as, in the example above, my brother knows he may use my car to go to lunch, but that he has no right to use it to drive to Canada.

Likewise, in the R-Burger/L-Burger example I gave, I assumed a hypothetical situation in which the customer wanted an R-Burger. That is, he wanted a burger having certain characteristics—it is fresh, has meat and bread, and was made by a certain, identifiable company (the R-Burger chain). When he paid for the fake R-Burger, then title to his coin transfers to the vendor only if the conditions are met. They are not met, because the burger was not made by the R-Burger chain, and that was one of the customer’s conditions. Therefore, the L-Burger chain is taking and using his coin without his consent. It is for this reason that he should have a claim against them for trespass (which may be couched in fraud, breach of contract, or theft terms).^[20]

Van Dun might argue that it is not possible to identify the R-Burger chain if it does not have a trademark right and that the L-Burger chain can just rename itself “R-Burgers” too, so that when the customer asks for an R-Burger (i.e., conditions the title transfer to the money on it being made and sold by R-Burger), he is actually getting one. He is just getting it from the second R-Burger company, not the first R-Burger company.

However, this response would be easy to overcome. It need only be possible for the customer to adequately identify what the condition is. Language is not infinitely malleable, and communication is (undeniably) possible. If pressed, the customer could specify that the purchase is conditioned on the current store he is in being owned by the same R-Burger company first started at such and such date and address, and so on. There is no reason it would be impossible to identify a given vendor without traditional trademark law, just as it is not impossible to identify fellow humans, despite the fact that we do not usually have trademarks on our names (in fact, humans often have identical names, e.g., John Smith).

Van Dun’s implicit assumption here is really that communication and identification of individuals or entities is literally impossible in the absence of trademark rights. I believe this is one of his central mistakes here. Van Dun seems to be so accustomed to the positive law’s trademark framework being relied on by modern businesses and consumers that he seems to believe accurate communication is impossible without it. This is obviously absurd.^[21]

21. To the contrary. Not only is trademark law not necessary for humans to be able to communicate with each other, but trademark law, like copyright, impedes the ability to communicate. See, e.g., Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” Yale L. J. 102, no. 7 (1993): 1533–1610, at 1585, discussing the U.S. Olympic Committee’s attempt to use trademark law to prevent an organization from calling its games the “Gay Olympics.” As Gordon writes:

When the courts have to choose between depriving the trademark owners of some of the “fruits of their labor,” on the one hand, or depriving the public and competing manufacturers of the ability to communicate simply and accurately on the other, the courts opt to sacrifice the creators’ reward in favor of securing the public’s liberty of communication. Thus, if the word “Olympic” is a generic communicative term, it would not be protectable as a trademark.

Ibid. (emphasis added; citations omitted). [See also my post Lisa Ramsey, Trademarks and Free Speech.]

The point here is that my Rothbardian property and contract framework can easily handle situations where buyers of goods might have a fraud or breach of contract claim against the seller if the some material characteristic of the good sold is misrepresented, even though the owners of goods do not own these characteristics or properties. In the case at hand, the federal Lanham Act “creates a cause of action against a defendant who ‘misrepresents the nature, characteristics, qualities, or geographic origin of a good.” Is it fraud?¹⁰ Now let’s put aside that this law is unconstitutional and also unjust merely because it is legislation.¹¹ Let’s also assume Igloo made a false statement in claiming that it was “the first to market a biodegradable cooler.” Is any actual buyer of Igloo’s coolers defrauded? I think this is a stretch. It is not a material term. It was not made an express condition of the same. It is not really any kind of quality of the item—even though, in principle, a customer could insist on some representation which, if false, would give rise to some kind of claim, whether breach of contract (really, contractual damages)¹² or fraud, I am not sure. The way to decide whether there is a breach of contract here is really to ask whether the parties implicitly agreed to the payment of a liquidated damages from the seller, Igloo, to the buyer, if the buyer later could prove Igloo was not “really” the “the first to market a biodegradable cooler.” A reasonable judge or arbitrator or jury would be asked to determine what implied terms were in the contract, since there is no express liquidated damages provision, or warranty, in a simple contemporaraneous exchange of money for a biogradeable cooler. The question would be: is it likely that the buyer, if asked, would have insisted on such a liquidated damages provision, which would have resulted in higher costs? Probably not. If you asked someone: “This cooler is $30 with a simple warranty that permits return only if it is defective; or you can pay $32 for the right to a refund if you can prove our claim about being first to market is not 100% true”, then any reasonable tribunal would have to conclude that this is unlikely, and therefore, it is not an implicit term in the contract. And therefore, it is not contract breach or fraud.