The reason the case against Megaupload founder Kim DotCom has hurt brand protection is because it has nothing to do with trademark enforcement and no one knows it. With all of the news this case is getting, the public-at-large does not know the difference between counterfeiting and piracy. There are many different kinds of Intellectual Property but only trademark was set up to protect the consumers before the content owner. The purpose of a trademark is to identify the origin of a good or service. The way this works is that, if you see my name or logo on my product, you can trust that it was made by me. Trademarks are set up as a seal of trust and quality between a manufacturer and a consumer. People who slap your favorite company’s logo on an inferior product deserve to be made to stop. By placing a company’s logo on a commercial work without permission helps dilute the brand. Even if your use is apparently harmless, they must enforce all unauthorized uses in order to be allowed to enforce the baddies. It’s the basic rule that your school teacher had when you were a child, “If I make an exception for you, I’d have to do it for all the other kids.” Copyright protection is quite different. It protects the creator or the owner. While that is still a noble cause, the difference needs to be made clearer to the public. The Copyright Act of 1790 granted an author up to 28 years of exclusive rights to his work as long as he was alive. In 1948 the United Nations passed The Universal Declaration of Human Rights which states ‘Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ I am citing this to make it clear that I vehemently support the protection of content. I do not, however, support the combining of these interests. Our founding fathers were careful to place copyright in the hands of the legislature (Library of Congress) and trademarks in the hands of the Executive Branch (US Patent and Trademark Office). This was no mistake.
In 1946 the United States passed the Lanham Act which prohibited trademark infringement, trademark dilution and false advertising. In 1984 the Trademark Counterfeiting Act established specific criminal penalties for the commercial use of a counterfeit trademark. Later, in 1999, the AntiCybersquatting Act was passed to prohibit the unauthorized commercial use of a trademark in a domain name. President George W. Bush made trademarks a priority when he appointed the first-ever Intellectual Property Czar, which was an undersecretary position within the Commerce Department. Of course trademark protection should be important. Our brands are exported all over the world and we rely on the reputation of those brands for more than a third of our economy. When President Obama was elected, he promoted the IPEC (Intellectual Property Enforcement Coordinator) position from undersecretary to full cabinet status. Somewhere between then and now this person with executive power has been dubbed the Copyright Czar. If the Executive Branch is granted to be in charge of trademarks and patents, why are they in the copyright business? Perhaps American corporations and our own government have been blurring the distinction between the two to make sloppy cases less noticeable. Or perhaps this is happening so that the specificity of Intellectual Property Rights becomes so unrecognizable that anyone can be prosecuted for almost anything. Or perhaps this is all just a completely innocent mix-up. Once we start to see copyright enforcement activity at the USPTO, we will know that our constitution is being ignored. Protection of all property needs to be respected, but the trademark community needs to stand alone in this fight if we want to bring trust back to the consumer.
Now I’m going to finish my coffee.
Image via Wikipedia
As I regularly search for shows on my TiVo using keywords that relate to my interests and work, I ran across a rerun of ‘Swift Justice with Nancy Grace‘ that originally aired on 2/28/11 entitled “An online rip-off; pit bull puppies”. This was caught in my filter because the word ‘knockoff’ was in the show’s description. In this episode, the first case was of a woman who had purchased a pair of Coach boots from a website buymerchant.com. Upon receipt of the boots, the Plaintiff stated that she believed they were counterfeit and was entitled to a refund of $174 USD. Whether the goods in this case were actually counterfeit is actually not even relevant to what I’m about to share. What followed was some of the most irresponsible judiciary-slash-journalistic behavior I have ever seen.
Grace first examines the boots saying, “If these are fake, I’ll buy ‘em! I’m all about fakes!” She then hollers backstage, “Hey, bring me out my my ‘Frauda’!” She giggled and looked back at the camera explaining, “My fake Prada. I love it.” As she brings the conversation back to the case on hand, she turns to the Plaintiff and uttered in a snarky drawl, “So… you don’t like fakes?”
After picking up my jaw from the atop my Birkenstock I witness Grace call in her ‘expert’ to authenticate the boots. This guy’s qualifications were that he was a former employee at a Coach store. Wait, it gets better. As he makes his unconvincing case, Grace barks again and looks offstage, “Hey, bring me back my fake!” Then she asks her expert to authenticate her ‘Frauda’. He explains to her that it is counterfeit and that a real handbag of this type is of higher quality and would retail for about $1,500 USD. Then Grace starts howling like a preacher with a bellyache with, “Fifteen… hundred… dollars?!?!?! Do you know how long I’ve had this thing? Five years. That’s a good quality bag!” Just as I did, you are probably asking if this idiot actually admitted to purchasing illegal goods, defend it and then promote the behavior from her bench on national television. Yes. She did. You can witness an excerpt of the event for yourself by clicking this link here: http://www.swiftjustice.com/case_files/2011-02-28
While much of the civilized world is trying to discourage this type of contraband activity, we have a nitwit like this adjudicating cases with her own television show, and doling out legal advice on CNN. While Nancy Grace is hosting ‘Swift Justice’, what she really needs is a swift kick in the rear end.
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Tagged acta, Anti-Countereiting, anti-counterfeiting, anticounterfeiting, Birkenstock, CBS, china, CNN, counterfeit, Counterfeit consumer goods, counterfeit goods, counterfeiting, counterfeits, IACC, intellectual property, internet investigations, knockoff, knockoffs, luxury goods, Nancy Grace, Prada, Presenter, replica, Swift Justice with Nancy Grace, Television, trademark, trademarks, USPTO
This week we interviewed John Anderson who is the Chairman of the Global Anticounterfeiting Group based in the EU. Anderson is one of the original International Men of Mystery. Though John does not have a license to kill (that we know of), his experience in global strategy encompasses many decades and he is here to speak about some of that this week.
Anderson explains to us many of the thoughts and processes that are a part of the Intellectual Property issues in the European Union today.
In 2005, Chris Israel was appointed by President Bush to be the first ever U.S. Intellectual Property Enforcement Coordinator (IPEC). We have the privilege of interviewing him about the Anti-Counterfeiting Trade Agreement (ACTA) treaty, what it means to us, and the current administration’s role in shaping world IP policy. As supposed leaks appear online, conspiracy theories grow. If you are interested in any aspect of piracy, copyright, or government policy this is not a show to miss!