Sometimes it takes a non-lawyer to show us just how far overboard the law has gone. In this case, it's trademark law and Cory's wonderful description of how TM lost its way.
Spurred by James Surowiecki's Wired piece on the decline of brand power, Cory looks back at how far we've come from the days when "consumer confusion" was the law's paramount concern.
Posted by Wendy at November 08, 2004 07:44 AM | TrackBack
Says Cory: This is a timely piece because the rhetoric of branding has been used to make unprecedented incursions against privacy, competition and speech.
It used to be that trademarks were intended to protect "consumers" (that's us) from being tricked into buying goods under false pretenses. If it said "Coca-Cola" on the can, there had better be Coke inside, and not Pepsi or Crazy-Bob's-Discount-House-of-Soda brand. When a competitor of Coke's shipped a bottle of stuff that was misleadingly packaged or labelled, Coke's authority to sue its competition derived from its need to protect us, not its bottom line. It didn't get to sue because it owned Coca-Cola, but because it was acting as a proxy for its customers, who were being decieved by con-artists who mislabelled their goods.
But as time went by, trademarks stopped being about us and started being the embodiment of brands (which, as Surowiecki points out, are on the wane and were probably never as important as we thought to begin with).
This meant that trademarks weren't just things that helped the public know what they were buying -- they are a kind of pseudo-property. Pseudo-property that could be defended on the basis that it "belongs" to a company, who need to be protected from having the value of their marks "diluted" or "tarnished."