[Algemeen] Fwd: [pp.int.general] trademarks | Wie vertaald Reinier zijn verhaal over handelsmerken ?

[Samir Allioui]

 There is apparently some confusion about trademarks in PP circles.
Are trademarks basically OK? Yes and no.
Trademarks essentially protect vendor reputations. Which makes them a useful
alternative even for patents: it allows competitive products, but not under
the guise of someone else.
Still, there is a number of problems with trademarks:

   - Exhaustion: there used to be workdwide exhasution, until about 20 years
   ago. In US terminilogy, this is the "first sale doctrine": once a product is
   sold, one is free to resell it, using the trademark. Under the present
   regime, people were prosecuted for offering second hand products on eBay,
   mentioning the trademark. Within EU, that is allowed. Selling e.g. a product
   bought in the US in EU is illegal if the trademark is used. Which is
   obviously preposterous in the Internet era. Vendors may claim that they
   don't want prople to buy 2nd hand products, because it decreases their
   profits, and it may hurt the luxury image of products.
   - Criminalisation: perhaps there is a reason to criminalise outright fake
   products (same products with a trademark that mimics the original as closely
   as possible). But there is also trademark infringement if a trademarks only
   *resembles* a protected trademark too closely. What is "too closely"? The
   ECJ defined the "confusion" criterion in the Puma v. Sahel case (for Germans
   known as "springende Raubkatze"). This requires a very sublte judgement,
   certainly beyond the competence of criminal authorities, let alone customs.
   Similarly, "dilution" or any other action that hurts the reputation or
   distinctive quality of a trademark may be illegal. That is not something to
   criminalise either.
   - Accumulation: some PPs object the accumulation of copyright and
   trademarks. I don't think it can be prevented, and I don't think it is a
   specific problem. Any original text, drawing, 3-D shapes etc. gets copyright
   protection automatically by law. And obviously these "signs" are used as
   trademarks. Obviously, abuse should be prevented. Like the smart Dutch
   publisher who tried to (effectively) extend the copyright of the (locally)
   famous "Dick Trom" books after it expired by registering the title and cover
   as trademarks.
   - Trademark are registered for errtain classes. Which allows a trademark
   to be reused in a (very) different field of endeavour. For instance, Ajax is
   not only a famous Dutch football club, but also the trademark of fire
   extinguishers, and a detergent.  So far so good. But trademark owners may
   also abuse their trademarks. Example: the "ICE" trademark of German
   high-speed trains is also registered for travel bags. Here the trademark is
   not used to protect a product, but only to make money.
   - Parallel import: trademarks prevent parallel import, outside the EU.
   Reasons for vendors to prevent parallel import include: price protection,
   ptrotection of (luxury) brand image, serviceability of products (including
   the "problem" of non-authorised dealers and repair shops, e.g. for cars).
   Perhaps some of these reason are valid, but consumers are faced with higher
   prices if parallel imports are prohibited. Within EU, luxury perfume seller
   Dior tried to resort to copyright - by default of trademark protection
   within EU preventing reselling - to prevent discount drugstore chain Evora
   (owner of Kruidvat, well-known in NL) to *advertise* using images of the
   their bottles - because that would hurt the luxury image of their brand. The
   court did not accept the argument (Google: Dior-Evora).
   - Bad faith trademark registration: legal enforceability of trademarks
   depends on registration. Traders may have forgotten to register the
   trademark they are using, which allows a competitor to register the
   trademark, end prevent the original user from using it. PP should oppose
   that (but it is current law).
   - Dilution: vendors often like their brand name to be considered a
   synonym for the product, because it gives the impression that the product is
   the only one. For instance, "powerpoint" is often used as a synonym for:
   PC-based presentation. "Oh no, I prefer Open Office 'Impress' as my
   powerpoint tool". Somehow contradictory, it may be illegal to use a brand
   name in such a way that it causes the trademark to loose its distinctive
   quality! Because a trademark may be no longer be considered enforceable if
   it really deteriorated to a species name. For instance, it may be illegal to
   designate a certain type of train as "intercity", because it is a registered
   trademark! Obviously, such "abuse" of trademarks should not be prosecuted.
   - Customs: the ownership of trademark-infringing products for personal
   use is not considered illegal (at least in NL), but importing is. Afaik
   customs authorities are not actively prosecuting travelers importing
   infringing products. But one day that may change. Would I be caught wearing
   the 10 euro Rolex watch I bought on the market in Bangkok? Or using the 15
   euro "North Face" backpack I bought in Saigon?
   - Incidentally, there are rumors that Lacoste manufactures the (alleged)
   illegal fakes sold on Asian markets themselves! (which can be proven by
   chemical analysis of the dyes that are used)

In sum. trademarks are not really innocent. Yes, they may provide a better
alternative for patents. But e.g. criminalisation of trademark infringement
is definitely a risk.

Feel free to put this information on a Wiki for reference.

reinier
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