Re: [ox-en] Patents and Copyright, but what about Trademarks?
- From: Russell McOrmond <russell flora.ca>
- Date: Fri, 7 Nov 2003 13:02:53 -0500 (EST)
On Fri, 7 Nov 2003, Graham Seaman wrote:
Do you happen to know how far this is a US-internal problem or a global
one? If global, is that just because the US are effectively imposing their
law on everyone else, or because all the local trademark
laws/administrations have the same flaws?
Being in Canada it is often hard for me to tell. The USA obstructs our
view of the rest of the world in a number of ways.
With WIPO's involvement in ICANN it is likely that the currently heavily
biased WIPO agenda will be globalized. We badly need to participate both
at WIPO and at WSIS to try to educate policy makers at that level.
Secondly, is there a simple flaw in trade mark law you'd like to see
removed, or is it just a question of trade marks being badly administered?
Trademark laws has similar problems with Patents, but both are very
different than copyright.
a) We need better 'prior art' (novelty) searches to ensure that a
trademark being filed is not actually in use by someone else already. A
phrase should also not receive a monopoly if it is the obvious word for
something (ie: "Windows" for a windowing system). It should never be a
matter of "first to file" or "the biggest lawyer shall win".
You'll note the patent-like tests for statutory, novelty and unobvious.
The concept of 'useful' (Industrial application) doesn't really apply to
trademarks.
b) We need to limit the scope of a trademark. There needs to be a
context to a word/mark, so that a word (such as "Fedora", which is a
dictionary word) can only be claimed as a commercial mark in a very narrow
context, such as a Software project towards an operating system. If
someone wants to call their Email package Fedora as well, there should be
no claim that there is a conflict. Calling a hat other than a fedora a
Fedora, or having any monopoly claim to that word in hats needs to
rejected.
For those who may not have known the word before they saw RedHat using
it: http://dictionary.reference.com/search?q=fedora
There is also a need to limit the geographical scope of a trademark
given there is no way to do planet-wide prior-art searches to verify
novelty.
The issue that is trademark law is trying to address is identity. If I
am associated with my websites "FLORA Community Web" and "FLORA Community
Consulting", it should be wrong to have a third party to make claims about
these sites. When trademarks are extended to common words or phrases with
no novelty or unobviousness that happen to be used in marketing campaigns
(Network Associates), or attempts to claim a brand/name monopoly outside
of a narrow market, and against people who have already been using the
name (etoy/etoys), then we have gone way too far!
---
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
Governance software that controls ICT, automates government policy, or
electronically counts votes, shouldn't be bought any more than
politicians should be bought. -- http://www.flora.ca/russell/
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