Factoryjoe on trademarks

FactoryJoe posts onWhy BarCamp is a Community Mark at FactoryCity, and in the process makes a specious comment on trademark law. Responding to my claim that “trademark laws are designed to protect consumers, not ensure a revenue stream for companies”, Joe claims:

This is the correct interpretation of trademark law as it was intended in 1876. Yeah, that’s right, 130 years ago… Intellectual property protections at one time served to protect the consumer, the little guy, the entrepreneur. That was back when the feedback loop that corrected fraudulent activities was slow, tedious and often ended with a dual in the middle of main street. With patents being filed en masse by folks like Texas Instruments (who will likely never use or enforce the majority of their portfolio), with copyright being used to stifle creativity and expression and trademarks being applied to community-protected language and ideas, it’s clear that the original uses and purposes of these legal concepts are not only under scrutiny, but may have finally become the last ditch effort large power-mongering corporations with major budgets to go after the smaller, more nimble independents that they were designed to protect.

While I have some sympathy with Joe on both copyright and patent law, I disagree with him on trademarks – and I don’t see a coherent argument in this post. He claims that my description of trademark law was accurate 130 years ago, and then supports this claim with examples about patents and copyright. That’s basically constructing a straw man, which is a rhetorical trick that’s as old as the hills and that generally indicates a specious argument. In other words, Joe is wrong.

So I’ll ask two questions of Joe:

1. Can anyone give an example where trademark law – NOT patents or copyright – has been used to stifle innovation or damage the interests of consumers (and no, the O’Reilly spat can’t be used – the facts of the case aren’t exactly clear, especially if you read Tim O’Reilly’s response).

2. If trademark law was removed from the statute books tomorrow, what would be the consequences?

  • nick s

    Depends how you define ‘damage the interest of consumers’, Ian. If a business is forced to spend time and money on litigation and re-branding, does that count?