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Comment by user3939382 | Hacker News Reader

The reminds me of the time a friend of mine told me her polo club was being sued by Ralph Lauren for using the word polo. I wish I was kidding.

* I believe there's something in trademark* law about being required to show some amount of effort defending your trademark. Maybe a lawyer can clarify. Is that getting translated by these corporate lawyers into harassing innocent people?

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2030: Splunk Inc and Meta are back in court today. Splunk Inc is being sued by Meta of the term "metadata" in their product which Meta says violates their trademark.

2031: Meta sued a group of Forza Horizon 5 players today, arguing the group infringed on their trademark when they used the term "Meta Build" in a livestream.

It's more like Apple suing an orchard for using the same word in their name... which demonstrates the real issue here is that Monster Beverages chose a word that is merely descriptive in an industry adjacent to their own market. Not an expert but maybe they would be better off making the scope of their market clearer rather than tilting at virtual monsters.

Apple did have to get a waiver from Apple Records in England, IiRC, which predated them by almost a decade.

It's important to note that this wasn't a waiver, this was multiple settlement agreements. Apple Corps sued Apple Computer at least four times:

- First in 1978, for merely being called Apple. They settled with an agreement to not enter into each other's businesses.

- Second, in 1986. Apple Computer put sound chips and MIDI ports into the Apple IIGS. Apple Corps sues claiming violation of the settlement agreement, because apparently just being able to play music makes it a trademark violation now.

- Third, in 1991. Apple Corps buys a new Macintosh and notices one of the system sounds is called Sosumi[0]. So they do. The settlement agreement now basically just prohibits Apple Computer from selling physical music.

- Fourth, in 2003. Apple Computer opens a digital music store. Apple Corps sues despite the settlement agreement clearly stating they only have rights to sell physical music with the Apple branding. They lose.

[0] Pronounced "So Sue Me"

I knew when I said IIRC that I probably did not remember correctly. It was only the 1978 settlement that stuck in my head.

Well, Microsoft successfully established "Windows" as a trademark, even though the term "window" was commonly used in graphical interface documentation for many years prior to their arrogating it.

Not "Microsoft Windows", but just "Windows". Disgraceful.

There’s nothing in copyright law that pertains to trademark. They’re entirely separate things.

But yes, trademarks can be invalidated if you do not defend them. Because the point of a trademark is to be a unique identifier for a particular good or service, to protect consumers against fraud or misrepresentation. If it isn’t a unique identifier because others are using it, then there is not a consumer protection reason to provide this exclusive use anymore.

I think people often miss sight that the reason for a trademark isn’t the same as copyright. It’s not a protection of a creative work. It’s a protection of fair commerce.

I meant trademark sorry. Personally I’m aware of the difference (having owned both) but it is a common point of confusion.

And yet I've never heard a single word about any trademark issues suffered by the maker of a certain word processor due to insufficient lashing out against everybody who makes unrelated use of the word they happen to use as their product name.

Now you have!

https://www.newsweek.com/microsoft-sues-mom-2-over-name-her-...

Thanks. I keep forgetting that use and use in a product/business name are entirely different things when it comes to this game if calling dibs.

PS: yet still Wordpress exist and many others. Is it ritualized to the point that they just need one token "defensive takedown" on the books every n years to prove active defense? In that case there might be some money in providing trademark attack as a service, so that trademark owners can go through the formalities of proving worthiness without risking all that negative press that might come with tackling an actual mom&pop, indie game author or similar.

To counteract this, we need some form of vexatious litigation charge for copyright and trademarks - if you try to assert ownership over something you obviously don't own (as decided by a jury), you lose the original trademark you were trying to protect into the public domain.

The idea of punishing a mark holder by invalidating their mark presumes that trademarks exist as a benefit to the mark holder.

But they don’t. They exist as a benefit to consumers. This would be a misplaced punishment.

Trademarks benefit both consumers and mark holders. We don't want consumers to be tricked into buying subpar counterfeits, nor do we want infringers to exploit consumer trust in the trademark to steal business from the mark holder or to undermine that trust.

A trademark could benefit the company, but that’s a secondary downstream effect, not a requirement for a valid mark. Trademarks for horrible and awful products with terrible reputations are still entirely valid despite not being a benefit to the mark holder.

On the other hand, trademarks must provide identifying benefit to consumers, in order to be valid. Because this is the primary legal purpose and justification.

Then why is it so profitable for mark holders to sue everyone so broadly when there is no benefit to consumers?

No one thought Tony the Tiger lived in Exxon gasoline, and yet the lawsuit exists.

Because it is exceedingly rare that a law only does or is claimed to apply to exactly what it intends to do without other consequences.

There’s always some lawyer who will claim that a law applies even if it it found that doesn’t. In fact, this is entirely normal. Legal cases have two sides and only one will be found right.

The motivations of the lawyers in your examples are entirely different than the motivations of the lawmakers who wrote trademark law, and the judiciary that enforces it.

Let’s be clear: nobody created trademark law for the purpose of a cereal company getting rich off suing petroleum companies. In fact, those who established trademark law purposefully limited trademarks to a particular good or service exactly to prevent that.

So if trademarks aren’t helpful to businesses, not intended to be helpful to businesses, why file for one at all?

You're right, but I think the secondary effect is important. Hypothetically, if there was no intent to protect mark holders, the law could work differently: As long as the trademark is used for equivalent products, and there is no harm to the consumer, then it wouldn't matter who used the trademark. You'd think I'd be able to start a company to sell GE toaster ovens made in my personal back yard factory, if the end result was equivalent to what GE sells.

That’s why courts recognize trademark dilution as a valid reason to invalidate someone’s trademark. Consumers naturally start using prominent marks genetically as the difference between products disappears.

The practical problem is that there’s no real way to test this until a case is brought. You might be able to bring your own crock-pot to market, but unfortunately the only tool to legally evaluate whether that’s okay is the legal system itself. I’m not sure there’s a good way around that other than making the legal system more accessible in general.

> Trademarks for horrible and awful products with terrible reputations

... don't provide value to the consumer either, because no one would intentionally infringe on such a mark. Your argument works equally well against your own claim as the one you are trying to refute.

There are still opportunities for fraud and misrepresentation even for brands with bad reputations.

I presume your point here is that a trademark represents "authenticity", which is valuable to consumers. That's a fair concern, but clearly a large part of the benefit does in fact accrue to the holder - otherwise they wouldn't spend a cent protecting it.

Yes, but the legal construct of trademark does not exist for that reason. They exist only to facilitate fair commerce.

Trademark erosion? https://en.wikipedia.org/wiki/Generic_trademark#Trademark_er...

That’s it

Didn't the brand line Polo takes its inspiration from the sport though, given the logo?

Yes exactly, that's what makes it especially ridiculous. Not to mention that trademarks are granted by classes anyway, and the sport and fashion products have nothing to do with each other.

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