I posted the following on the Mises blog and the Against Monopoly blog a couple years ago. See also here for other posts on trademark; both of these are discussed extensively in episode 93 of the excellent Complete Liberty podcast.
Update: Kinsella, “If you oppose IP you support plagiarism; copying others is fraud or contract breach,” in “Hello! You’ve Been Referred Here Because You’re Wrong About Intellectual Property” (C4SIF)
For other material on Trademark:
- Against Intellectual Property, “Trademark” section (I was a bit softer on trademark then than I would be now; i.e., “The matter does not appear to me now as it appears to have appeared to me then.” —Baron Bramwell, in Andrews v. Styrap (Ex. 1872) 26 L.T.R. (N.S.) 704, 706
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“Trademark and Fraud,” Mises Economics Blog (Nov. 7, 2007); Archived comments
- How to Improve Patent, Copyright, and Trademark Law
- The Velvet Elvis and Other Trademark Absurdities
- The Patent, Copyright, Trademark, and Trade Secret Horror Files
- Other Trademark-related posts at C4SIF
Trademark Ain’t So Hot Either…
David–sure, it is understandable why you are “much more favorably inclined towards trademarks than other forms of intellectual property.” As you say, “It seems to me a good thing that it is possible to tell who you are doing business with, and no downside monopoly”. As I noted here, the primary justification for trademark rights is based on the notion of fraud–that the “infringer” is defrauding his customers by misrepresenting his identity and the source of the goods being sold (see pp. 43-44 of my Against Intellectual Property, pp. 59-63 of Reply to Van Dun: Non-Aggression and Title Transfer, p. 34 of A Theory of Contracts: Binding Promises, Title Transfer, and Inalienability).But this analysis would give a cause of action to customers, however, not to the holder of the mark, who is not defrauded. Moreover, it would protect the customer only when there is fraud. For example, neither the customer (nor Rolex) should be able to sue Rolex knock-off companies, because people who buy fake Rolexes for $10 are not being defrauded. They know they are buying a cheap knock-off. But trademark law does give trademark holders–not customers–the right to sue infringers, regardless of whether there is really fraud to the consumer.
So while we can condemn fraudulent sales to customers, this is not what modern trademark law prevents. Modern state-run trademark law is almost as bad as cpoyright and patent, even if it has a less-objectionable core or origin. The fundamental problem with trademark law is that it is state law–it is created and administed by the state, which is a criminal organization. To expect justice from the state is like expecting a cat to bark.
Thus we have trademark rights granted to trademark holders, instead of to customers, the real victims of fraud. Thus we have a statutory scheme establishing an arbitrary, artificial legal system and an inept bureaucracy to construe and enforce it. Thus we have ridiculous extensions of trademark to cover “anti-dilution” rights, much as the term and scope of copyright and patent are gradually increased over time. And thus we have the government’s courts used like trademark’s more infamous cousins, copyright and patent, to stifle competition and squelch free speech. See, e.g., A Bully-Boy Beer Brewer, Straight Talk; 9th Circuit Appeals Court Says Its Ok To Criticize Trademarks After All; Trademarks and Free Speech; Beemer must be next… (BMW, Trademarks, and the letter “M”); Hypocritical Apple (Trademark); ECJ: “Parmesian” Infringes PDO for “Parmigiano Reggiano”; Engadget Mobile Threatened For Using T-Mobile‘s Trademarked Magenta. [continue reading…]











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