Penn State Trademark Suit

[Samson's Wig 3,194]

I suspect that, should this approach to trademark infringement cases be adopted more broadly, brand/product disparagement or Lanham Act dilution approaches will expand to incorporate any presumed protections lost.  There is far too much revenue to be lost, by entities with the means to prevent it, for this type of shift in trademark law to take hold without things being shored up otherwise.

[TwiceHorn 31,519]

2 hours ago, Celery Man said:

The value of a brand is reputational, which is broader than the quality of the products it manufactures if it even manufactures products. A Patagonia branded Cyber Truck (better example) would damage the Patagonia brand (because of the confusion about association) with Patagonia’s core market.

Well, we don't disagree about the value of a brand.

But trademarks are not intended to protect a brand from any and all damage, but only that that stems from consumer deception that results in purchasing the wrong product.

The fact of the matter, though, is because the above sentence has gotten lost in the noise, trademarks function to protect a brand from non-specific damage that is divorced from the original intention.

[TwiceHorn 31,519]

33 minutes ago, Samson's Wig said:

I suspect that, should this approach to trademark infringement cases be adopted more broadly, brand/product disparagement or Lanham Act dilution approaches will expand to incorporate any presumed protections lost.  There is far too much revenue to be lost, by entities with the means to prevent it, for this type of shift in trademark law to take hold without things being shored up otherwise.

Yeah and see I think dilution is kind of bullshit too.  Or it ought to be an almost entirely different category of protection with different rules outright, which might lead to preemption problems with Article I, Section 8.

But you're right, by drifting from first principles of trademark law, a whole expectation and business has developed out of it.  Not sure that's really a good thing, though.

 

[TwiceHorn 31,519]

Speaking of dilution, in that same seminar where I wrote the paper about aesthetic functionality, there was this crazy guy that was both an MD and a PhD in EE.  He wrote a paper about dilution that purported to show, scientifically, that brief exposure to "misused" trademarks (that is, used on way different goods than those of the owner, or just used in some way that cast a negative light on the trademark) could subconsciously create a negative impression of the brand in the mind of the consumer.

Apart from the "psychosis" that leads one to obtain both an MD and a PhD and a JD, I figured that guy was brilliant (he probably was) and destined for great things as an IP attorney.

Twenty years later he was implicated in a patent malpractice suit involving a big law firm that had had a revolving door of mediocre IP practitioners running through it.  He wasn't the main tortfeasor by any stretch, but still.  Kind of a sad deal.

[Celery Man 20,989]

2 hours ago, TwiceHorn said:

Well, we don't disagree about the value of a brand.

But trademarks are not intended to protect a brand from any and all damage, but only that that stems from consumer deception that results in purchasing the wrong product.

Right, but this is what I'm doing a poor job of trying to get you to explain to me - in the fictional case of Elon putting Patagonia branding on a Cyber Truck to try and win back granola EV buyers, that would be clearly deceptive to the consumers. You keep saying that people wouldn't be confused and think that Patagonia is now making cars - of course not. But they would still be confused about the involvement of Patagonia and all that that means to them, and may make a choice to buy the product that they wouldn't have made without the deceptive use of the trademark. It's maybe a bit harder imagine that someone might do that with a $100k purchase but it would be easy with some normal consumable - to customers, Patagonia means ethically source and eco-friendly and durably made and perhaps some kind of guarantee and even that the profits go to some environmental organization. If someone puts that Patagonia logo on some non-outdoor clothing related consumable and I quickly choose to buy the one from the company that makes durable eco-conscious products with a lifetime guarantee and profits that benefit fighting global warming but it turns out that this is a bottom of the barrel cheap piece of shit drop-shipped from the coal burning plastics factory in Shenzhen, have I not been deceived into purchasing the wrong product? What I don't understand from your point is the limits of what a trademark should protect - it should only be used to prevent confusion over who manufactured a physical product in the core business of the entity holding the trademark?

Edited yesterday at 07:30 PM by Celery Man

[TwiceHorn 31,519]

1 hour ago, Celery Man said:

Right, but this is what I'm doing a poor job of trying to get you to explain to me - in the fictional case of Elon putting Patagonia branding on a Cyber Truck to try and win back granola EV buyers, that would be clearly deceptive to the consumers. You keep saying that people wouldn't be confused and think that Patagonia is now making cars - of course not. But they would still be confused about the involvement of Patagonia and all that that means to them, and may make a choice to buy the product that they wouldn't have made without the deceptive use of the trademark. It's maybe a bit harder imagine that someone might do that with a $100k purchase but it would be easy with some normal consumable - to customers, Patagonia means ethically source and eco-friendly and durabld made and perhaps some kind of guarantee and even that the profits go to some environmental organization. If someone puts that Patagonia logo on some non-outdoor clothing related consumable and I quickly choose to buy the one from the company that makes durable eco-conscious products with a lifetime guarantee and profits that benefit fighting global warming but it turns out that this is a bottom of the barrel cheap piece of shit drop-shipped from the coal burning plastics factory in Shenzhen, have I not been deceived into purchasing the wrong product? What I don't understand from your point is the limits of what a trademark should protect - it should only be used to prevent confusion over who manufactured a physical product in the core business of the entity holding the trademark?

Yes. The kind of deception that trademark law was originally intended to prevent was buying one entity's product thinking it to have come from another manufacturer, I.e. the owner of the trademark.

There's other kinds of deception that trademark law was not intended to address.  For example, trademark law doesn't address false labeling of ingredients or "made in USA" etc.

There's a sort of subspecies of trademark law, called dilution, which occurs when the diluter/infringer doesn't compete with the mark owner, that is, doesn't sell the same or even similar types of goods.

Rather than being founded on regular trademark law, where the emphasis is the consumer, dilution focuses almost exclusively on harm to the mark itself, the property.  Broadly speaking, dilution is only available where the trademark in question is "famous," which has an elusive  meaning, but is intended to mean that it's so well-known that any unauthorized use, no matter how unlikely to confuse, weakens the mark or the brand.  Dilution is kind of a bastard thing that doesn't actually work very well.

Also, I submit that people either like the Eddie Bauer package, to use a real-world example, or they don't.  They generally don't give a flying fuck whether EB is making money or actually sponsors anything, because at some level they know it's just a gimmick. 

Your Patagonia example is interesting, but Patagonia probably wouldn't license to a vehicle manufacturer for the very reasons you cite that it might be harmful to the brand.

[Celery Man 20,989]

They should make a Michael Kors RAV4

[Blotto 23,564]

There's a lot of big words and fancy concepts I dont get in this thread. I just want to know if those bastards at the Big Johnson T-shirt company will finally have to pony up the millions they owe me. 

[Dahobbs 17,637]

On 11/22/2024 at 8:32 PM, TwiceHorn said:

Well, you actually were in the clothing business. 

And, your logos and artwork would be subject of copyright.

But, lets say you licensed your band name/logo to, I dunno, a software company  . . .  or an educational institution . . . . it starts to get kind of fishy.

Trademarks aren't really intended to make a business money, they're intended to stop a business from losing money through free-riders.

If you license a logo for the purpose of clothing, you're in the clothing business just as if you directly sold the clothes yourselves. And let's say you sell the clothes, but hire a vendor to actually make them. Under your view, are you in the clothing business? I think the law is and should be more flexible than you're suggesting.

[elfenix 34,331]

What's amazing to me is that the T-shirt printing business and online retailing are both really mature markets at this point, but Fanatics came out of nowhere about 5 years ago and now the founders are billionaires. 

[Celery Man 20,989]

8 minutes ago, elfenix said:

Fanatics came out of nowhere about 5 years ago and now the founders are billionaires. 

how did we fucking miss on this

[TwiceHorn 31,519]

15 hours ago, Dahobbs said:

If you license a logo for the purpose of clothing, you're in the clothing business just as if you directly sold the clothes yourselves. And let's say you sell the clothes, but hire a vendor to actually make them. Under your view, are you in the clothing business? I think the law is and should be more flexible than you're suggesting.

This is the current state of the law, but the bold is the operative concept.  

Why do you think that?  So people can make more money by extending their trademarks?  There's no real policy justification for that.

I basically object to trademarks as property, other than to the extent the owner of a trademark can sue to prevent confusion by a second user of the mark.

[miguelito 11,267]

4 hours ago, Celery Man said:

how did we fucking miss on this

We should have splurged on a professional model, and not just settled for the first homeless guy that would agree to wear the shirt.

[Dahobbs 17,637]

53 minutes ago, TwiceHorn said:

This is the current state of the law, but the bold is the operative concept.  

Why do you think that?  So people can make more money by extending their trademarks?  There's no real policy justification for that.

I basically object to trademarks as property, other than to the extent the owner of a trademark can sue to prevent confusion by a second user of the mark.

I don't think how the business is structured changes the fact that there is a business. Whether I do it directly as a sole proprietorship, do it as part of a corporation, or do it through a chain of vendors, I'm in the business. UT sells clothing, either directly or indirectly. Is Apple not in the cell phone manufacturing business because it pays TSMC to produce it's chips and Foxconn to manufacture and package the actual phones?  I think the line you're attempting to draw is a lot more fuzzy than you're suggesting. 

And, let's say I agree with you on trademark. Does it change anything if the licensing arrangements include a license of both the trademark and copyright associated with UT designs? Shouldn't it?