I'd be interested in your take on that one. Are you just against people trying to prevent others from trading on the public goodwill that they've worked hard to foster, or is the Komen case special for some reason?
> Are you just against people trying to prevent others from trading on the public goodwill that they've worked hard to foster, or is the Komen case special for some reason?
The Komen case isn't "special", it's just different because Komen is a non-profit organization, which holds them (or ought to hold them) to a different (not "higher", just different) standard of conduct. Facebook is a for-profit organization. Their mandate is to maximize their shareholder's return on investment. (I don't think that's what their mandate ought to be, but for better or worse, that's what it is.) So if FB thinks it can make money for its shareholders by suing other organizations for using the word "book" then that's acceptable conduct under the rules of engagement for for-profit organizations in the U.S. I think it's unwise for FB to attempt to lay claim to the word "book", and think that they ought not to be allowed to succeed in their attempt. But making the attempt is defensible under the mandate and rules of engagement for for-profit companies.
Komen's mandate is not to make money for its shareholders, but to serve some societally-beneficial purpose. In Komen's case that purpose is, ostensibly, to raise money for cancer research. Suing other organizations for using the phrase "for the cure" can only be justified if the net effect of this action is to increase the net amount of money raised for cancer research, and I have a very hard time believing that that is what the net effect of this lawsuit will be. So this is not about serving their mandate, it's about something else (serving the egos of the members of Komen's board perhaps?)
One of the things about trademark law that many people miss is that if you have one, you protect it or you lose it. You cannot knowingly let anybody do things to dilute your trademark without the risk that, at a later time, this is used as evidence that you didn't protect it and so you lose trademark protection entirely.
So what you're saying here, basically, is that you feel that charities shouldn't trademark their various words, phrases and other marketing materials. And, of course, in consequence, it should be possible for a different charity to brand itself in a confusingly similar way to an existing charity.
In light of this, do you still feel the same way?
I think that there's certainly a bad side to brand confusion amongst charities. That said, I can't decide whether the ill consequences of that are better or worse than charities wasting their donors' money suing and defending suits against each other.
> One of the things about trademark law that many people miss is that if you have one, you protect it or you lose it.
Yes, I know.
> So what you're saying here, basically, is that you feel that charities shouldn't trademark their various words, phrases and other marketing materials.
No, I'm saying that charities ought not to attempt to lay claim to generic phrases like "for the cure."
> And, of course, in consequence, it should be possible for a different charity to brand itself in a confusingly similar way to an existing charity.
Do you seriously think anyone is going to confuse "Susan G. Komen for the cure" with "Jugglers for the cure"?
Ok, I think I see where you're coming from here: charities should not try to maintain certain trademarks that you feel are overly generic. Fair enough. I can't disagree totally with the sentiment, though we may or may not disagree on where one draws the line. (I've not totally thought this through, myself, and, to be practical, I don't feel much urge to do so.)
And no, I don't seriously think that any significant number of people would confuse "Susan G. Komen for the cure" with "Jugglers for the cure." But that's not really the point; were I the holder of that trademark, I probably would be concerned that failing to defend that might open me up to bigger problems later on.
> charities should not try to maintain certain trademarks that you feel are overly generic
Charities should not do *anything* that does not serve their mandate.
> we may or may not disagree on where one draws the line
I suppose reasonable people *might* disagree about this, but you'd have a very hard time convincing me that Komen's attempt to lay claim to the phrase "for the cure" actually advances the cause of finding a cure for anything, let alone breast cancer.
Now that I think about it, I am actually offended by the arrogance implicit in the phrase "for the cure". The use of the article "the" implies that there is one and only one cure. (It should be "for *a* cure".) Komen's attempt to trademark this phrase implies that only Komen is qualified to find this One True Cure. The message is: there is only one disease worth curing, breast cancer, and there is only one organization qualified to cure it, and that is Komen. It is brilliant marketing. It's catchy. It sticks in your head. But it is a lie. And -- and this is the crux of the matter -- it doesn't help find a cure.
> Charities should not do *anything* that does not serve their mandate.
Hm. So do you not consider part of a charity's mandate to be to compete with other charities for for a limited amount of charitable giving? Because, looking at this sort of situation, that's clearly what they do.
It seems to me a difficult problem. I think that charities can and should compete with, say, cruise lines for consumer dollars, even though I find charities coming down on other charities rather disgusting. But then again, it depends on the charity. Someone doing serious cancer research taking money that would otherwise go to the Creation Museum or anti-vaccine folks, well, I wouldn't feel terribly bad about that. I suppose that puts me right in with the rest of them.
> So do you not consider part of a charity's mandate to be to compete with other charities for for a limited amount of charitable giving?
Komen's mandate (perhaps "charter" would be a better word? Mission?) is to raise money for breast cancer research. If they can raise the net amount of money raised for breast cancer research by competing, then I'm all for it. For example, if Komen operates with lower overhead than, say, Blondes for the Cure, or has a better track record of funding research that produces results, I have no problem at all with them using those facts to try to get people to contribute to Komen rather than Blondes. But what Komen is doing has nothing to do with competing on the merits, it has to do with using the legal system to enforce their exclusive privilege to use an effective but misleading marketing slogan. IMHO it's dishonorable. Worst of all, it's *expensive*, and I don't want to support it. But it's a free country. If you want your charitable donations to support stupid litigation then by all means contribute to Susan G. Komen. They are, after all, the only ones who are For the Cure (tm).
Regarding litigation to 'protect' it's identity; While it would be prudent to maintain it's own trademarks, laying claim to the concept of CURE and the color PINK does not justify the destruction of charitable works by other non-profit organizations.
It may be legally permissible and intellectually defensible, but socially counterproductive and truly reprehensible in a moral sense. Some may say even stupid.
Monies are better spent on solving the affliction in question, not lining the pockets of attorneys and making busywork for the courts.
http://ip.law360.com/articles/189490
ReplyDeleteI'd be interested in your take on that one. Are you just against people trying to prevent others from trading on the public goodwill that they've worked hard to foster, or is the Komen case special for some reason?
> Are you just against people trying to prevent others from trading on the public goodwill that they've worked hard to foster, or is the Komen case special for some reason?
ReplyDeleteThe Komen case isn't "special", it's just different because Komen is a non-profit organization, which holds them (or ought to hold them) to a different (not "higher", just different) standard of conduct. Facebook is a for-profit organization. Their mandate is to maximize their shareholder's return on investment. (I don't think that's what their mandate ought to be, but for better or worse, that's what it is.) So if FB thinks it can make money for its shareholders by suing other organizations for using the word "book" then that's acceptable conduct under the rules of engagement for for-profit organizations in the U.S. I think it's unwise for FB to attempt to lay claim to the word "book", and think that they ought not to be allowed to succeed in their attempt. But making the attempt is defensible under the mandate and rules of engagement for for-profit companies.
Komen's mandate is not to make money for its shareholders, but to serve some societally-beneficial purpose. In Komen's case that purpose is, ostensibly, to raise money for cancer research. Suing other organizations for using the phrase "for the cure" can only be justified if the net effect of this action is to increase the net amount of money raised for cancer research, and I have a very hard time believing that that is what the net effect of this lawsuit will be. So this is not about serving their mandate, it's about something else (serving the egos of the members of Komen's board perhaps?)
One of the things about trademark law that many people miss is that if you have one, you protect it or you lose it. You cannot knowingly let anybody do things to dilute your trademark without the risk that, at a later time, this is used as evidence that you didn't protect it and so you lose trademark protection entirely.
ReplyDeleteSo what you're saying here, basically, is that you feel that charities shouldn't trademark their various words, phrases and other marketing materials. And, of course, in consequence, it should be possible for a different charity to brand itself in a confusingly similar way to an existing charity.
In light of this, do you still feel the same way?
I think that there's certainly a bad side to brand confusion amongst charities. That said, I can't decide whether the ill consequences of that are better or worse than charities wasting their donors' money suing and defending suits against each other.
> One of the things about trademark law that many people miss is that if you have one, you protect it or you lose it.
ReplyDeleteYes, I know.
> So what you're saying here, basically, is that you feel that charities shouldn't trademark their various words, phrases and other marketing materials.
No, I'm saying that charities ought not to attempt to lay claim to generic phrases like "for the cure."
> And, of course, in consequence, it should be possible for a different charity to brand itself in a confusingly similar way to an existing charity.
Do you seriously think anyone is going to confuse "Susan G. Komen for the cure" with "Jugglers for the cure"?
Ok, I think I see where you're coming from here: charities should not try to maintain certain trademarks that you feel are overly generic. Fair enough. I can't disagree totally with the sentiment, though we may or may not disagree on where one draws the line. (I've not totally thought this through, myself, and, to be practical, I don't feel much urge to do so.)
ReplyDeleteAnd no, I don't seriously think that any significant number of people would confuse "Susan G. Komen for the cure" with "Jugglers for the cure." But that's not really the point; were I the holder of that trademark, I probably would be concerned that failing to defend that might open me up to bigger problems later on.
> charities should not try to maintain certain trademarks that you feel are overly generic
ReplyDeleteCharities should not do *anything* that does not serve their mandate.
> we may or may not disagree on where one draws the line
I suppose reasonable people *might* disagree about this, but you'd have a very hard time convincing me that Komen's attempt to lay claim to the phrase "for the cure" actually advances the cause of finding a cure for anything, let alone breast cancer.
Now that I think about it, I am actually offended by the arrogance implicit in the phrase "for the cure". The use of the article "the" implies that there is one and only one cure. (It should be "for *a* cure".) Komen's attempt to trademark this phrase implies that only Komen is qualified to find this One True Cure. The message is: there is only one disease worth curing, breast cancer, and there is only one organization qualified to cure it, and that is Komen. It is brilliant marketing. It's catchy. It sticks in your head. But it is a lie. And -- and this is the crux of the matter -- it doesn't help find a cure.
> Charities should not do *anything* that does not serve their mandate.
ReplyDeleteHm. So do you not consider part of a charity's mandate to be to compete with other charities for for a limited amount of charitable giving? Because, looking at this sort of situation, that's clearly what they do.
It seems to me a difficult problem. I think that charities can and should compete with, say, cruise lines for consumer dollars, even though I find charities coming down on other charities rather disgusting. But then again, it depends on the charity. Someone doing serious cancer research taking money that would otherwise go to the Creation Museum or anti-vaccine folks, well, I wouldn't feel terribly bad about that. I suppose that puts me right in with the rest of them.
> So do you not consider part of a charity's mandate to be to compete with other charities for for a limited amount of charitable giving?
ReplyDeleteKomen's mandate (perhaps "charter" would be a better word? Mission?) is to raise money for breast cancer research. If they can raise the net amount of money raised for breast cancer research by competing, then I'm all for it. For example, if Komen operates with lower overhead than, say, Blondes for the Cure, or has a better track record of funding research that produces results, I have no problem at all with them using those facts to try to get people to contribute to Komen rather than Blondes. But what Komen is doing has nothing to do with competing on the merits, it has to do with using the legal system to enforce their exclusive privilege to use an effective but misleading marketing slogan. IMHO it's dishonorable. Worst of all, it's *expensive*, and I don't want to support it. But it's a free country. If you want your charitable donations to support stupid litigation then by all means contribute to Susan G. Komen. They are, after all, the only ones who are For the Cure (tm).
Regarding litigation to 'protect' it's identity; While it would be prudent to maintain it's own trademarks, laying claim to the concept of CURE and the color PINK does not justify the destruction of charitable works by other non-profit organizations.
ReplyDeleteIt may be legally permissible and intellectually defensible, but socially counterproductive and truly reprehensible in a moral sense. Some may say even stupid.
Monies are better spent on solving the affliction in question, not lining the pockets of attorneys and making busywork for the courts.