Thursday

GO FIGURE. IT TOOK TOILET PAPER TO ROUSE THE TRADEMARK TROLL FROM HIS SLUMBER

Big biz battles over patents all the time. But it's not that common for titans of industry to clash over trademarks. At least industrial titans.

Oh sure I can give props to Georgia-Pacific. With the 4 billion ( with a B) dollar toilet paper market to protect they played the "let's convert out patents into trademarks so that we will always have a monopoly" game absolutely according to rules and strategy. First, they came up a quilted and raised design on their toilet paper. This design fluffed up the sheets and prevented sheets from nesting. As sophisticated players what did they do? They bombarded the United States Patent & Trademark Office with numerous utility patents.

But that's not all they did. G-P also filed design patent applications. And they sought to claim trademark status for several diamond designs. The always compliant PTO helped them play the game by issuing them design patents and federally registering these same designs as trademarks.

Long ago the famous ( later infamous) music producer Phil Spector, created a wall of sound musical effect. G-P tried to establish a wall of IP effect to scare off competitors. But it didn't work.

Some time in the early 1990s Kimberly Clark, another titan of the toilet paper industry, began producing a quilted design on its toilet paper. And so you have it. Godzilla v Rodan.
By the time the case got to the Seventh Circuit, a dozen witnesses had testified and 675,000 documents had been reviewed.



Judge Evans reviewed and dismissed all of G-P's arguments. The essence of his decision was that, by their own words, G-P acknowledged that the diamond designs helped the toilet paper function better. To summarize eons of trademark doctrine. If you make it function better you are wasting your time to claim that folks associate you with that functional improvement.

And yes the earth is still rotating on its axis. I can't help but wonder, did G-P really think they would win? Did the litigation keep Kimberly Clark from competing more vigorously? Does such litigation only serve to strengthen the view that intellectual property laws hinder rather than promote competition?

I guess from now on such questions are properly considered in the rooms where the quilted diamond designs are directly on display.

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