Tuesday, February 27, 2007

Nobody feels romantic about trademarks

Except for maybe trademark attorneys (update: and marketers). The above title comes from the article "'Copyright Panic' Leads to Irrational Expansion of Rights." The article is about the trend toward overzealous expansion of copyright laws as described in an article in the Berkeley Technology Law Journal (article not online) co-authored by Mark Bartholomew and John Tehranian.

With respect to trademark law, the article states the following:

In contrast, trademark law has not been subjected to a broadening of secondary liability in recent years, even though digital technologies pose just as much a threat to trademark holders, Bartholomew and Tehranian point out. The divergent path of copyright and trademark law has "created tremendous legal uncertainty that threatens the investment in new technologies," they say.

In creating a double standard for copyright and trademark law the courts appear to have been influenced by the "romantic nature" of copyright law, Bartholomew says. "It's romantic to think about someone writing the great American novel or producing a hit song," he explains, "and the people who appeal for protection of these rights -- authors, movie stars, musicians -- are themselves very appealing."

When these romantic notions are combined with fears of widespread digital theft you get "copyright panic," Bartholomew contends.

Trademark law, on the other hand, rarely gets the Hollywood treatment and has not succumbed to the same irrational behavior, Bartholomew points out.

"Nobody feels so romantic about trademarks. These cases usually involve big corporations, ad people and sales people who are not as appealing of a plaintiff as a Carlos Santana or Don Henley. That's why the court has been able to resist expanding trademark law."

Interesting theory. I'll have to run down to the law library to read the law review.

Note: the University of Buffalo News Release contain this secondary headline: "Drab trademark law spared similar legal tinkering, law review article points out." So trademark law is drab and unromantic. I don't know if I should be offended or not : )

Technorati Tags: , , , , , , , ,