Bill
You make important distinctions between the type of property right associated with
patents, copyrights, and trademarks. However, from the standpoint of law and
economics theory, and from the standpoint of ordinary usage, "ownership" means the
following things:
-- the right to use
-- the right to exclude others from use
-- the right to transfer
All of those factors apply to trademarks. It is very important to stress, as you
do, that the raison d'etre for trademark ownership is the right of the consumer not
to be confused or deceived, and not some intrinsic claim of the mark owner
(although in the case law I have read I often see great emphasis placed on the mark
holder's investments in the brand). But I do not see what is accomplished by saying
that the mark is not "owned" when all of the rigorously defined features of
ownership are present.
--MM
Bill Lovell wrote:
> Anything that can be "owned" is property. A trademark registration is more
> like a contract with the world: "for the opportunity to prevent others from
> using this mark, I promise to police it and make sure that no one else uses the
> same mark on the same goods and services, which could cause confusion amongst all
> you
> folk." Similarly, a patent says that for the opportunity to prevent others
> from making, using or selling this technology during my little place in the sun,
> in this
> patent application you will find a complete description of the invention, so that
>
> those "of ordinary skill in the art can make and use the same," i.e., after the
> patent term terminates and the technology falls into the public domain. A
> distinct
> difference between the two is that patents, like copyrights, have Constitutional
> support; a trademark does not. Patents and copyrights are property because the
> owners thereof have created something new in the world; trademarks AS SUCH are
> not, although a neat new logo or whatever might also have copyright protection,
> but
> it would the copyright, not the trademark, that has characteristics of ownership.
>
> The trademark imposes duties of performance that neither patents nor copyrights
> impose, and are only acquired (this is all U. S. law, of course) by ACTUAL USE
> of the mark in commerce; the trademark registration itself neither adds to nor
> detracts from whatever trademark "rights" might already exist under the common
> law, except in terms of evidence. Those duties also include that of
> maintaining the quality of the goods sold under the mark: the consumer has a
> right to get
> what was expected when the purchase was made on the basis of the mark.
>
> Paul Revere's stamp was on all of his silver works, and the "guild" tradition
> extends back to England and even further back from there to Italy. The mark
> is not owned, but one has a hard earned "license" to use it.
>
> Bill Lovell
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