Consider I made an Operating System, and called it Windows. (Remember, "Windows" is just an every day word that people use for at least several concepts.) Regardless of the quality of my OS or the effectiveness of my advertising, I'm in trouble for violating trademarks.
What is the danger to customers? They may buy my OS thinking they're getting Microsoft's. That's all. "Customer confusion." But frankly, this happens regardless. People sent back laptops to Dell, when they sold Ubuntu-loaded machines, because they didn't realize they weren't getting Windows. "Ubuntu" looks nothing like "Windows", yet people still made mistakes. And how was that handled? They sent the product back, and all was well.
Ah, but what if Dell didn't offer refunds? "Caveat Emptor." Such things are supposed to be made at least modestly clear, if the buyer is willing to risk that, then they deserve the punishment for making their own mistake of ignorance. (Both of not realizing what they are buying, and risking no-refunds.) If Dell didn't offer refunds and actually sold something they didn't make clear, there are fraud laws to charge them with.
So this isn't about the customer. "Customer Confusion" is not a valid reason to prosecute a business; only straight-up fraud should be prosecuted.
What harm am I doing Microsoft? Well, I'm piggybacking off their name for the same service. (Note: Trademark laws don't apply if you have the same name but a sufficiently different product.) I'm also a competing product, and competition is bad for the established dominant player (because it could upset their dominance).
Society has already decided that competition is good, and monopolies are bad. Monopolies are good for the monopoly in question, but looking at it from the larger perspective they're dangerous. Thus since we've already agreed monopolies are bad, and have legislation that's supposed to prevent (or at least limit) them, why not get rid of trademarks too? Yes my OS would be piggybacking on the name, but that just means I have a lower barrier to entry into the competitive market of operating systems, and that's actually a good thing. Maybe not for Microsoft, but for me and everyone else it is. If my product is worse, people won't get it on that merit and some people might mistake my bad product for belonging to Microsoft. (Though some people think Microsoft owns Linux or that it secretly runs Windows in the background.) If my product is better, it theoretically would have become an annoyance to Microsoft sooner or later, and if it's the same name why not sooner. Sooner forces Microsoft to start trying to out-innovate me sooner, which is a good thing for everyone.
Lastly is a weak argument from absurdity. You want to pretend your every-day word or number or whatever is something special, and that only you have rights to it? That's absurd. Just like it's absurd to patent a linked list, just like it's absurd to patent DNA, just like it's absurd to copyright a tweet. We should have less absurdity in our lives, even if the world is already mad.
Posted on 2010-03-05 by Jach
Tags: intellectual property
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