The Voodoo Theory of Trademarks

Mar 21 2007 Published by under Intellectual Property

I love the way Cory Doctorow expresses it in this BoingBoing post:

Now, whenever I write about trademarks, I get a bunch of emails asserting the voodoo theory of trademark: every conceivable use of a trademark has to be policed aggressively or you'll lose your trademarks forever. It's just not true. A trademark isn't the right to tell people what words they can use when they talk, and it isn't the right to tell dictionaries which words they're allowed to define. Voodoo trademarkism is a fairy tale that trademark lawyers tell their kids at night to reassure them that they'll have a healthy college fund.

Trademarks of the third of the "intellectual property" trio that I tend to worry about the least. (Patents are the most dangerous, copyrights being a close second— not because either are inherently bad, necessarily, but because both are horribly misused, and misused with an air of extreme self-righteousness, in our society today.)

This comes from an article about how McDonald's is trying to get the colloquialism "McJob" removed from the Oxford English Dictionary. Part of their argument seems to be that it's offensive....

This fits in nicely with Ed's Is Everyone a Victim? meme. (Can I use the word meme in the general sense if it isn't a blog game?) I mean, if McDonalds, one of the most powerful and indeed nomative McCorporations out there, can be all poor and oppressed and mistreated, then who can't?

10 responses so far

  • Tyler DiPietro says:

    To be perfectly honest I think the best thing the free culture and FOSS folks (count me among them) can do is to stop using the phrase "intellectual property". The set of laws grouped under the prase "intellectual property" would be far more accurately denoted if called "monopoly privilege". That is not to say that such things don't have a place in our society, but that it's not akin to "property", which is a basic right in a liberal democracy. When such laws act more as a means of giant corporate entities to greenmail smaller competitors, constrict consumer freedom, and other nefarious ends outside of ensuring due compensation for innovation, then they're not serving their societal purpose.

  • Rob Knop says:

    Yes, in general I agree with you. The sad thing is that the term is so widely used that you can't really avoid it.
    I prefer the term "Thought Monopolies," because that contains all sorts of negative censorship connotations. It's a nice balance with the positive warm-and-fuzzy property-rights connotations that we (at least in the USA) associate with the term "Intellectual Property." Also, Thought Monopolies is a closer description of what those things really are....

  • Mark says:

    When you look at the section of the Constitution under which intellectual property is protected (To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries), it's clear that the intent is to promote benefits to society. That protection entails benefits to the "authors and inventors", but the direct benefits to them are not the primary purpose of that section. However, patent/copyright/trademark law has transformed into something that does the opposite of the intention of the authors.

  • Rob Knop says:

    Yes, "Intellectual Property" law has turned into the notion that there are fundamental rights at stake. Indeed, most people seem to think that you have a fundamental right to something you thought of -- I can understand the impulse.
    However, the fundamental rights of freedom of speech and freedom of the press come into conflict with that, and I think the latter two much more basic and important in a free society than the ability for you to control what others do with your thoughts and expression. Because we value creators, we may need to make some tradeoffs (i.e. copyrights and patents) to encourage them to keep creating, and to allow them to survive while making creating their vocation. But when it turns into an inalienable right that should be protected evermore, then, yes, the intent is lost.

  • Eric Lund says:

    "McJob" is hardly the only perjorative term to have been derived from McDonalds. There is also "McMansion", which refers to the suburban residential monstrosities most homebuilders have been building for the last fifteen years or so.
    McDonald's can complain all they want, but they have become the eptiome of mediocre conformity. Trying to become Thinkpol will definitely not help their image.

  • bigTom says:

    One of my co-workers came to me and said the patent office has foolishly granted a patent on the linked list. Apparently this is
    only a doubly linked link -an obvious extension that I suspect anyone who needed it could think up.
    In the good old days of the computer industry, the manufacturers used to live by a kind of gentlemans rule, you violate my patents, and I violate yours "everything is fine". Unfortunately lawyers have bought up failed companies for the sole purpose of litigating the patents. This sort of reverses the claim of patents being used so the big guys can screw the little guys. This is little guys screwing big corporations.
    I still remark about an article I read in New Scientist, where as a joke the author submitted a patent application for a "linear comparator" (common ruler), and was granted a UK patent!

  • Rob Knop says:

    When was the doubly-linked list patent granted? I'm trying to remember the first time I came across them. I know that I first learned about linked lists in a computer science class I took in 1987; I can't remember if I used doubly linked lists then or not. However, I do know that the Amiga operating system included a system library that had doubly linked lists built in, and the Amiga came out in 1986.
    All KINDS of obvious software stuff is patented, because the people in the patent office don't know enough to realize that they're obvious. The whole system is broken. The thing is, even some "legitimate" patents are harmful. For instance, the patent model of funding pharmaceutical research is, in my opinion, very harmful. It may "work," but it brings too many downsides along with it, and we should be considering other models to fund it. (Which ain't gonna happen, because all of our mutual funds-- including retirement funds-- are heavily invested in pharmaceutical companies.)

  • Eric Lund says:

    I still remark about an article I read in New Scientist, where as a joke the author submitted a patent application for a "linear comparator" (common ruler), and was granted a UK patent!

    A more egregious example, which won an Ig Nobel Prize in 2001:

    Awarded jointly to John Keogh of Hawthorn, Victoria, Australia, for patenting the wheel in the year 2001, and to the Australian Patent Office for granting him Innovation Patent #2001100012.

    So as far as Australian law is concerned, Mr. Keogh really did (re)invent the wheel.

  • David Harmon says:

    The patent system in particular has been desperately underfunded for some time now, and in particular, they have no staff available to check the originality of applications. (Especially when the big companies do have staff available, to churn out patent applications by the dozen.) Any disproof of a patent's originality has to be provided (and paid for) by someone with reason and resources to challenge the patent. In effect, the only "spark of genius" needed these days is in the mind of your patent lawyer....

  • Colst says:

    "So as far as Australian law is concerned, Mr. Keogh really did (re)invent the wheel."
    To be fair, the Australian "innovation patent" is not meant to be the same as a patent of the more familiar type.
    "What are the benefits and limitations of the innovation patent?
    You are unable to go to court to enforce the innovation patent until it has been examined and certified.
    As the innovation patent is granted without substantive examination, IP Australia has not made any checks that the patent is valid....."