Monday, 18 April 2011

Using trade marks to fence off the commons

Some IP owners seem to be insatiable. That modern copyright law has been adapted to serve the purpose of corporate interests is trite - why else would the United States have a piece of legislation known colloquially as the Mickey Mouse Protection Act? And why would we be considering increasing the duration of protection for sound recordings in Europe, to avoid the obviously undesirable consequence of early Elvis recordings losing copyright protection? (And what about Kind Of Blue?)

Here is news that Disney is trying to obtain a trade mark (actually a US one, so "trademark") for PRINCESS AURORA. She's a character in Sleeping Beauty, and seems to have been since 1697, but of course that makes no difference for trade mark purposes. In a similar vein, The True Snow White - a site set up to promote a new book telling the old story - rails against Disney's applications to register the heroine's name as a trademark, although it seems to be a bit late - the US register seems to have quite a few Snow White trade marks on it, not all Disney's. Ron Coleman has a posting about the same matter on his Likelihood of Confusion blog.

As I have said, and written, before, the problem isn't with the large corporations that are filing these applications to enclose what everyone believed to be in the public domain. It's a form of evergreening, though it has more to do with bringing back to life intellectual property which has been dead for years - perhaps never lived to begin with. The fault lies with the laws that allow this sort of thing to happen, and if protection of this nature can be obtained it's no surprise that corporate trade mark owners avail themselves of what is on offer. Failure to do so could be a failure by the directors of the company to do their duty, and shareholders could become understandably upset - especially if someone else grabbed the property because the "right" owner hadn't done so themselves.

The fallacy in this argument is, however, that the reason the law permits this sort of thing to go on is because those same corporate IP owners have persuaded the legislature that it should. There is, I think, a simple answer to this problem - and problem it certainly is, because it leads to foreclosure and depletion in the trade mark field and has chilling effects on creativity - which is to force the trade marks genie back into the bottle labelled "indication of origin". Let trade marks do what they were designed to do, and stop this excessive, harmful monopolisation. There's a lot of anger about concerning the excessive strength and reach of copyright and patents - it is high time the trade mark system came in for the same criticism. And we ought to get started on designs, too.

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