Sunday, 13 March 2011

Another day, another misuse of trade mark protection?

There are too many descriptive trade marks registered these days. Too many over-wide trade marks, too many registrations of parts of a trade identity which don't seem to me to constitute trade marks by themselves, as I have remarked before: and too many that simply don't seem to me to be capable of distinguishing one source from another.

These thoughts came to me when I read about a developing trade mark dispute over the expression "urban homesteading" - reported in the Sacramento Bee here. Because it's in the States I won't comment on it specifically, and perhaps the registration as a US trade mark of that expression is perfectly legitimate. The fact that others are using it descriptively might make no difference, as the trade mark owners claim use back to 2001 and have trade marks dating back to 2007: but "The Urban Homesteading Assistance Board" trade mark dates back to 1979 ... and suggests a purely descriptive (though a bit different) meaning.

This episode reveals the chilling effects of trade mark registrations which enclose expressions that others might have a legitimate interest in using. Of course anyone who wants to use the expression can challenge the registration or simply put their heads above the parapet and, when sued, file a counterclaim (at least, they could here): but it's when Facebook (as reported by the Sacramento Bee) starts taking down pages because someone is asserting trade mark rights that the chill really sets in. Too much power over free speech has been placed in the hands of private interests who provide the media through which free speech is exercised - and they should  be obliged to assume responsibility for examining the merits of these claims before cutting people off. IMHO.

Mind you, no trade marks registry in the world should be allowing this sort of thing to happen in the first place. And if (as is often the case) it's because they are applying the law, then the law is plain wrong. No trade mark law should permit this to happen - and providing a means to challenge it when it does happen is no substitute.

Postscript: There's now a Facebook group  Take Back Urban Home-Steading(s) (I bet I know why that hyphen is there) and perhaps the start of a Cooks Source-type campaign.

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