The Great Internet Trademark Debate

The Great Internet Trademark Debate has been going on for some time, with little indication of an end in sight.

It's complicated by the observation that many people don't see what the big deal is until they have a trademark of their own, at which point they often become rabid about defending it.

I used to do some work for a couple of music companies, and the copyright issue was big then (everyone had pirated MP3's). I often saw musicians with huge collections of MP3's suddenly go onto a "hey! that's MY copyright" frenzy when someone actually uploaded a rip from their album. They were usually pleased at first (for about 15 minutes) and then realized that all the work they had put into the song was now available for free.

There were a few musicians who didn't mind, or who decided that they would upload songs for free, and then make money off concerts, or whatever, but most changed their tune once it actually affected them. From anarchist to capitalist in one rip and upload.

The person who coined the phrase "Imitation is the sincerest form of flattery" obviously didn't have a copyright or trademark on anything...

I'm seeing the same thing in trademarks. Trademarks are a very different area of law than copyright, so you can't apply the same rules, but since they are both about intellectual property, there are some similarities.

Everyone that matters (professional pirates, don't count, IMO) agrees that trademark is intended to protect the public from confusion. Fine. But it often goes further than that. Owners consider often trademark as protection of their business from copycats. Since this is not completely true, there is a lot of confusion about the results and expectations.

Worse, trademark is not a universal thing. If you have a copyright, then you are protected pretty much everywhere in the world (except a few places that are not commercially viable anyway) under the Berne and other conventions. There is no practical geographic restriction, which is good, because the internet has no practical geographic restriction either.

Trademark, on the other hand, is geographically restricted. A trademark can only be enforced in the jurisdiction that it's registered in, and anywhere else that has an agreement with them. Additionally, the geography can be VERY restrictive. Technically, you can have a trademark that is only valid for a few city blocks, under some circumstances. "Bob's Garage" could be trademarked hundreds of thousands of times around the world, and each trademark is exclusive in its area.

This is not compatible with the internet.

Until there is a central trademark system applicable to the internet, we will continue to see issues like this. They will get worse as the internet penetrates more of the world. If eBay does not have a trademark registered in Upper Volta, then they have no basis for any claims related to that country. They would only be effective if the local legal system accepted evidence of "world famous brand" or some such, and that's entirely up to that government.

In practice, since the major search engines are based in the US, right now your best bet is to register your trademark under US law. But that's not going to be a viable option for very long.

Trademark law as it is right now is not compatible with the operation of internet. I'm looking forward to how this is going to turn out. Should be interesting.

Personally, I think preventing bidding on search terms is going too far, but since a French ruling has made it clear that in that jurisdiction it's the law, Yahoo is probably going to follow it. Yahoo and MSN both have far more experience internationally than Google does.

Google tends to be much more US-centric in focus, and although it's working for them right now, I'm not sure that it will continue to do so in the future. At some point, non-US countries are going to get tired of having to deal with the various wierdness of US law.

I predict that if Google goes down, it won't be due to technology or money. It will be due to it's lack of cultural and international awareness and focus, and trademark law will be one of the flashpoints that starts it.

My opinion, of course,

Ian