Trademark law Spinning out of Control??

Apparently there has been a trend for lawyers in the States to encourage, among others, celebrities to trademark phrases that they are famous for using. Examples of these are Donald Trump’s “You’re Fired!” and Paris Hilton’s “That’s hot!” and most recently, Larry Birkhead’s (who’s that?!) trade marking the phrase “Goodnight, My Sweet Anna Baby” (yes, he’s one of those guys fighting for custody of the late Anna Nicole Smith’s baby daughter). Obviously they stand to make a handsome profit from all this.

Birkhead’s former attorney, Debra Opri, claims that she advised him to trademark the phrase to "protect himself" and not to pursue any deals. "There's no agenda," she told ABCNews.com. "You don't want someone else to take advantage of something he said internationally — after he said it in court and then on one of the TV shows, it became famous."

The primary purpose of Trademark law is often said to be consumer protection. It is to prevent the possibility of a consumer being ‘confused’ as to the origin of the product he is purchasing. This has caused some to take the view that Trademark law should thus be excluded from the ambit of the “Intellectual Property” umbrella entirely. This is because copyrights and patents are designed to specific ownership over an idea or work to those who created it for a period of time. This is primarily meant to encourage innovation. The rationale is that unless businesses are able to recover and make profit from their innovation, they would not have the incentive to risk the huge investments needed in the research and development process. As such, they need to be given a monopoly (albeit limited to a determinate period) where they can exploit the innovation and recoup their investments (of course this is a rather simplistic view of the entire situation).

But of course, as often is the case, intentions and reality are completely different creatures. Trademark has already been used and abused to cover a whole myriad of activities that (in my opinion) it should not. For example, it has been used by trademark owners to block or prevent parallel imports into particular countries. What this means is that if Sony or Canon finds out that there are businesses engaged in parallel importation of their products from Asia into the US or UK, they may be able to block such importation using Trademark law. I personally do not see how this fulfils its purpose of preventing consumer confusion. “Its (still) a sony” isn’t it? (fortunately for many Singaporeans, the government encourages parallel importation).

Of course it could be argued that they contain completely different specifications, intended for different markets. But this would raise further questions. What about consumer choice? What would warrant such a difference in specifications in the first place?!

At the end of the day, it would seem like purely a commercial motive. Businesses know that they have to segment the market and that in order to enter into certain markets, they will have to lower prices of the final product? For example, companies who desire to enter into the Malaysian market cannot possibly be retailing their products at the same prices as in countries like the US and UK. They necessarily will have to engage in price adjustments. This may also inevitably affect the quality of the final products (as they may have to reduce the number of features, among other things).

So do I personally think that trademark law is going out of control? Not really.

Now before you start wondering what the hell is going on, let me explain. As with the majority of (commercial related) law, the stated objectives and principles are one thing, the reality is often completely different. We just need to recognise and accept it. For example, is everybody really treated equally under the law? Does every party to a contract really have equal bargaining power? It doesn’t take a rocket scientist to realise that, as much as we would like to think it does, it never works out like this. I think its one of those things that lawyers like people to think to keep the veneer of law embodying the highest values of society and keep them in awe of it.

But the reality is that Law is a whore.

Yes, and I’m one of its pimps!
(I’m feeling particularly cynical today!)