Monday

ABUSIVE TRADEMARK PRACTICE? YOU BE THE JUDGE

Thanks to the TechDirt blog for alerting me to the enforcement practices of the Car-Freshener Corporation. This company produces the very well known evergreen tree shaped air freshener.A parent corporation has registered the evergreen tree shape as a trademark. And therein lies the problem.
In attempting to maintain its monopoly over use of the evergreen tree shape as a source identifier for an air freshener( as well as unrelated products) the company produced an advertisement suggesting that their evergreen tree shape is their private property AS USED FOR ANY COMMERCIAL PURPOSE. On their website the company also suggests that the law requires them to pursue any and all possibly infringing uses by others or risk losing their rights to the evergreen tree shape as a trademark.
This is a less flagrant example of what has become an all to common practice. The established rights holder overstates or misstates the scope of its rights to chill any commercial use of a verbal or non verbal commercial symbol by others. The recent assertion of rights by the Jones Day law firm is perhaps the most flagrant and unjustified example.
But with the ubiquitous evergreen tree shaped air freshener the problem dear Brutus lies not in the stars but in the shape. For all the ink that has been spilled over non traditional trademarks- the simple fact is that trademark law always functions best when the battle is over a trade symbol not the underlying product. Trademark doctrine deals comfortably with a circumstance where I misuse your name to sell perfume. Because there is no debate whether I can legally sell perfume. The debate rages over the name for the perfume.
But when the identifier for the thing and the thing itself merge- and the law grants me protection- I smile broadly but the cost to society may be prohibitive. Because now I may have a perpetual monopoly on the production of a good not simply the name of the good.
So what if I want to use an evergreen tree shaped hang tag for my line of purses or briefcases? Or I decide to market an evergreen tree shaped shredded wheat biscuit.
Or what if I produce a pine cone shaped air freshener?

I don't have answers. But I feel comfortable in saying that the conduct of the owner of the evergreen tree shaped product/trademark is calculated to stop others from pursuing such answers.

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