> >Then I took a look at Door Systems v Pro-Line from which you quote your
> >support about trademarks not being property. To my reading that is dicta
> >and not at all part of the holding. If one removed that statement
> >regarding property, the Court's logic would still follow the same path. In
> >other words, the statement about trademarks and property is a logical
> >no-op, contributing nothing for and nothing against the conclusion which
> >is eventually reached.
>
> .... (The Supreme Court settled the matter in 1918,
> I believe it was.)
It was 2am when I did my scan, so I could have missed it -- but I
certainly didn't find any supreme court case that directly answered the
question. And as you said, it's been 81 years since 1918 and notions of
property in the 5th amendment context have vastly changed since then.
> But ask yourself: can I sell my copyright, all by
> itself? Can I sell my patent, all by itself? Can I sell my trade secret,
> all by itself? Can I sell my trademark, all by itself? The answers are
> Y,Y,Y,N. Trademarks have no existence except in connection with
> the commercial practices that gave rise to them, so if you sell the
> company trademark you also have to sell the company, so to speak,
> or at least the so-called "good will" that the company built up.
I do not agree. (Especially since I have done exactly that -- I have
engaged in contracts to transfer trademarks.) While it may be true that
in the long term the life of a trademark must be supported by use in
commerce, it is perfectly acceptable for the mark to be transferred so
that the seller stops selling the product covered by the mark and the
buyer starts applying the mark to its own version of the product.
> American Motors was able to sell "Jeep" to Chrysler only because
> Chrysler had taken it upon itself to follow the tradition and make and
> sell Jeeps; without the sale of the Jeep business as well, there would
> now be no Jeeps.
That does not say that one can not transfer a trademark -- AMC transferred
the mark, it that transfer did not require Chrysler to use the same
assembly lines, the same blueprints, etc.
All that happens as the result of a transfer of a mark is that the seller
loses the ability to use the mark and the buyer of can start using it.
There's no need to actually transfer some underlying product or service.
The seller may need to engage in some form of commerce in order to keep
the mark alive, but that is not the same as requiring that the seller
actually transfer its commercial activities to the buyer along with the
mark.
> >But your warning is well taken, that trademarks, because they are
> >statutory creations, can be eliminated by legislative actions.
>
> As noted above, not what I said. Theoretically they could be eliminated,
> since they have not the same Constitutional protection, but abrogating t
> he common law is a pretty tough row to hoe!
I think you missed my point -- in the due process analysis, one of the
points of focus has been whether the right composing the "property" is one
derived from statute (and... as the analysis goes, the legislature is free
to change the statute and thus indirectly modify the "property" without it
being a taking lacking in due process.)
As for marks derived from common law -- by analogy, rights of easement and
proscriptive use are derived from common law rights but nobody denies that
they are property, indeed often real property, rights.
In this domian name area, it would be nice, however, if there were broader
recogition of common law rights, and indeed rights of people to use names
freely right up to the borders of the legitimate scope of a mark.
> >Any not to forget the ying to the mark holder's yang, any change that
> >reduced the freedom to use names which are not marks at all or to use
> >names in areas not covered by the existing scope of a mark is an act of
> >similar import and significance.
>
> That aspect is indeed well established.
I would assert that if it is established it is rapidly crumbling. NSI's
policies are a localized indication of such crumbling. The instance of
many holders of marks and their organizations that domain name
registrations be subjected to various processes is a more significant
crumbling.
And yes, bad cases, especially ones with imbalances of financial
resources, do tend to entrench bad results. But that does not mean that
we ought to step aside and quietly permit the imposition of policies which
create an easy path to these bad cases in in the first place.
--karl--
