Friday, February 03, 2023

WIPIP: Innovation Theory & TM

Andrew Gilden & Sarah R. Wasserman Rajec, Innovations in Pleasure

Conscious effort to tout devices/drugs as medical, downplaying their recreational and pleasurable features. Patents for cannabis related products, including lubricant, explained as medical and instrumental—to avoid divorce, mix cannabis with Viagra. Consequences of excluding pleasure from patent discourse: effects on what is considered patentable?

Queer theory: pleasure as a way of knowing things. Like debates about traditional knowledge. Patents talk about boundary-lowering potentials of MDMA (ecstasy), which has been known for decades among queer communities.

Abortion and contraception are also implicated by this. Folkloric and medical treatments have existed at least from Hippocratic times. Moving from the folk to the patent/regulated system also strips out the pleasure and the purpose—to fix sick people instead of allowing women freedom to make private choices; becomes public and subject to legislation.

Q: drugs v. devices used by a physician: does that form a pattern or change over time and who is the user—the patient or the doctor?

Rosenblatt: is this good (sharing knowledge with wider community), bad (commercializing and privatizing what had been used for human flourishing), or a sociological account?

Jeremy Sheff, Distributive Norms around Knowledge as a Resource

Should we focus on excludability or rivalrousness in determining how to manage resources? We can make things excludable through tech and law, making things that previously looked like public goods providable by private markets. But should you do that? Depriving people of benefits that don’t cost anything to provide. Jefferson’s maxim about lighting one’s taper from another’s was cribbed from Cicero, who suggested that there was a moral obligation to share nonrivalrous goods.  Book project: how do we reconcile that with our intuitions about markets and distributive justice?

Norms of distributive justice: Political equality: all else equal, all human beings have an equal claim/obligation to benefits and burdens of social life.  Responsibility: unequal benefits/burdens shouldn’t be a function of brute luck, but b/c of their own choices and actions.

Assumption: benefits for some correlate w/burdens for others: my loaf of bread isn’t mine any more if I give it to you. When agents return good for good and ill for ill—reciprocity—the baseline norm of political equality is maintained. This assumption holds generally for scarce, tangible resources (private goods).

But that doesn’t apply to knowledge. So we face reciprocity norm conflict. Compensation intuition: obligation to reciprocate is function of burden on giver, so we should measure it by cost borne. Gratitude: obligation to reciprocate is function of benefit to recipient, so we should measure it by value received. While they overlap for scarce tangible goods, they conflict for knowledge. If we adhere to one, we violate the other. Confusing knowledge creation with distribution obfuscates but doesn’t eliminate those paradoxes.

Jordi Goodman: Knowledge transfer is not costless—it takes time. Also, gratitude is a norm that is payment, which is also why you ask if someone is in a position to accept the transfer. Gender and race as well as culture affect the costs of transmission.

A: agreed that transfer of knowledge and bundling of knowledge with scarce resources like time and labor that might attend upon transfer. If we think there’s a duty to compensate, it’s about those other resources.

Courtney Cox: kinds of knowledge: if I know something that has value b/c knowledge of it is limited, that may require different analysis.

A: basic observation of benefit matching loss works with physical goods. (Though it also can be costly to hang on to goods.) Maintaining an advantage in pursuing goals b/c of asymmetric information is a different issue that isn’t about benefit, ties this to Qs like insider trading.

RT: I’m not sure you can say there’s no cost to the knowledge transfer as such when it inherently entails my time and effort—it’s just that the transfer might not work, and in that sense we can distinguish between the time and effort and whether the knowledge transfer happens.  Copying may be directly costless to the knowledge creator, but knowledge transfer is not, and who is initiating may affect what’s going on here: knowledge transfer encodes voluntariness which fits with Cicero but not with a lot of the copying to which people object today. Obligation not to stop copying, or a right to stop copying, is different.

Vishnubhakat: cost of transfer might be correlated with cost of creation in ways that affect the analysis.

A: yes, but trying to clarify that we care about different things for different reasons and may have to choose which.


Justin Hughes on the disappearance of terroir—interesting argument about reality (microclimates are real but GIs are much broader; climate change makes past claims not credible) and politics (EU and China deals to recognize a limited set of GIs; extension of GI claims to arts and crafts). Today, very few claims are about the nature of the territory.

Bob Brauneis: Modern GIs seem so much like certification marks that Jeanne Fromer’s criticisms of the latter seem to apply--used to fight between producers to exclude some b/c there’s no effective concept of terroir to discipline the concept.

A: that’s right; GI fans think that certification marks are way too weak, and the gov’t should bring everyone in and regulate the certification, supposedly forcing transparency.

Buccafusco: internal v. external producer interests. Champagne shippers want the place champagne comes from to be as big as possible; growers in the region want it as small as possible to increase the price; but Moet wants the lowest possible cost of inputs while keeping the price high externally, so its internal idea about what champagne is no longer has much appeal to terroir.

A: the extremely successful GIs have this problem; contrast to the less successful ones that really want an appeal to terroir to provide sales appeal.

Sandra L. Rierson, Trademark Law and the Creep of Legal Formalism

Various rules w/in TM law have been codified that we seem to be treating more as formalistic labels or bright line rules when a more practical approach is preferable in TM context instead of leaning on labels.

Legal formalism: this might not be the right label, it might be more rules v. standards. Background: Erie marks transition from era of legal formalism to realism; one of the reasons we have the Lanham Act, since Erie invalidated the federal common law of trademarks. Results came not from balancing competing principles and policies, but automatically applying rules deduced logically from greater principles that supposedly dictated a single result in every case. Example: allowing descriptive terms with acquired distinctiveness to be “trademarks” is realist; common law/1905 Act required D sell goods of “same descriptive properties” as P for infringement, but Lanham Act eliminated that requirement, which is now just a LOC factor.

Formalism creeping back in: three examples. (1) Dilution—formalistic principle: once we put the label famous on a mark, we don’t do much to restrict the protection of that mark. Victoria’s Secret v. Moseley on remand: use on a sex-related business is presumed to tarnish.

(2) Genericism/genericide—the generic label has become overly formalistic in terms of if a mark is deemed generic, the courts put that label on it and don’t look at the way it functions in the marketplace. was trend in the right direction looking at how the mark was functioning in practice & competitive necessity [note that gave no weight to competitive necessity]. Too much emphasis on noncommercial uses of terms in determining genericity—words can have multiple meanings in multiple contexts. Courts no longer have sufficient flexibility to remedy unfair competition when a word has been deemed generic. [I don’t think that’s true either. They don’t use it often but they definitely have it, and more courts are following the Belmora approach of saying 43(a) gives them that authority.]

(3) Functionality. Evolved to more bright line rule. Doesn’t pay sufficient attention to competitiveness inquiry. If it has the label functional that’s the end of the story. [But how is functionality assessed? A formal label in the outcome doesn’t mean legal formalism was applied to generate the label, any more than “affirmed” at the end of a court decision does.]

Bright line rules are attractive b/c predictable and easy to apply [none of these doctrines are those] but turn out to be arbitrary and generate unintended consequences. Taking an all or nothing approach w/o considering consumers and competitors is bad.

Silbey: legal realism was a response to 19th century formalism. Today we see formalism in other areas which can’t be divorced from politics of judicial review and judicial power over other branches of gov’t. Is that what’s going on here?  

A: plays a role, not sure how it ties into TM specifically where politics aren’t as obvious.

Rosenblatt: Who benefits from formalism? Is that any different from what we see in other contexts? David Welkowitz has a piece on benefits of uncertainty. Most obvious formalism to her is set of presumptions and burden shifts that come w/registration.

RT: Situate your argument: (1) Carol Rose, Crystals & Mud: cycles of law; (2) Glynn Lunney’s argument that the “everything in the hopper” practice of modern TM harms small entities that can’t afford to litigate in ways that expand the rights of big TM owners and contracts the rights of small ones (note that the dilution definition is neither a rule nor a standard! It’s not formalistic at all because it provides no rule of decision for which of these factors is more important or how to weigh them—you can find dilution but you don’t have to, as in the Gap case in NY).  (3) Mark McKenna—not formalism but absence of guardrails imposed on realism in classical unfair competition.

Alex Roberts, Multi-Level Lies

Marketing and advertising claims made by laypeople selling through MLMs. MLMs are exploitative business model—95-99% make no money, and the products are often junky. Web of federal and state regulation. Why do sellers make deceptive or illegal claims? A lot are desperate to recoup costs, unload products, meet goals they committed to; lack knowledge and training; rules aren’t intuitive (structure/function claims for supplements); share personal experience; true believers want to help friends.

Social media influencers seem reasonably held liable, but what about when the seller is texting friends. Current regime renders regulation uneven and inconsistent, incentivizing the use of MLM model. MLMs vary on type of guidance they give sellers about legal restrictions on marketing claims. A few say that you can’t use marketing messages other than what they approve. Some give dos (only truth), don’ts (don’t spam people, don’t mention disease).

Interested in sellers’ understanding of the contracts. Lay sellers don’t have strong understanding of laws and/or don’t feel bound by them. Interviews/surveys?

Rosenblatt: real incentive for companies to make rules that downline members don’t follow or understand. How do they make that happen? Gender and class?

Lemley: is/should there be contributory false advertising liability? [Yes]

RT: The core problem is that the entity that benefits the most isn’t held responsible for what sellers say to sell. We don’t need to reform advertising law; we need to reform agency law. [Gena Feist: and get the FTC rules actually enforced.] Solutions or analogies from gig economy?

Lemley: similarly it’s been proposed that liability should follow the brand, e.g. for franchising.

Said: note that MLM companies may also have IP troubles [Lularoe and leggings designs], which might also provide an interesting set of comparisons.

Felix Wu: Vicarious liability too—but are you interested in whether the individuals should be directly liable? To what end? Secondary liability means there has to be primary liability.

A: They’re often victims too—they are being taken advantage of. 

Rebecca Tushnet, Bad Spaniels, Counterfeit Methodists, and Lying Birds: How Trademark Law Reinvented Strict Scrutiny

Roughly one third of the judges on the federal bench were not there six years ago. Most of them were not even asked about their views about intellectual property, but a substantial number of them were chosen in order to reject major parts of the postwar legal order. It would be surprising if that didn’t have effects on intellectual property law, for good and for ill. Indeed, we are just starting to see those effects now, including among judges who might not be recently appointed but feel recently let off the leash of precedent

Where this project comes from: I wrote basically only amicus briefs the past two years, and most of the TM ones were about Rogers v. Grimaldi and its rule for so-called expressive speech, a phrase I hate because it is such a category error—commercial speech is not nonexpressive; when commercial speech causes trademark confusion it’s confusing because it’s expressive! Nonetheless, courts often write as if “expressive speech” was some kind of separate category from “source indication.”

I started thinking that I needed a better account of how the law ended up with this obviously wrong characterization and how we could do better.

In response to the massive expansion of trademark’s scope over the last century, courts mostly implicitly devised a compromise by which trademark is pulled back to a more traditional anti-fraud-like scope when it is applied to noncommercial speech sold in the marketplace, such as movies, newspapers, songs, and visual art, or used as the name of an organization with dues-paying members, such as a political party or congregation. The key here is that when I say fraud, I do not mean fraudulent intent, but materially deceptive effect resulting in economic interactions with the wrong party. This compromise explains an otherwise surprising feature of the cases: Political speakers and religious speakers can often expect worse outcomes than “commercial” publishers, given the kinds of cases brought against them. 

I’m going to assume you know what Rogers is and focus on the other classes of cases: cases against gripers, where courts increasingly say that there’s no liability at all, often saying that the Lanham Act is constitutional because it covers only commercial speech, and griping isn’t for-profit—ignoring that plenty of noncommercial speech is for profit.

This line of cases does more than create a conflict with Rogers and its progeny, which does apply the Lanham Act to noncommercial speech, albeit with a modified test. It also creates a conflict with a third line of cases: The Lanham Act is applied with no adjustment when political or religious plaintiffs, as opposed to ordinary marketplace actors, bring suit against competitors who claim to represent the true ideology behind the trademark. Breakaway sects have often been enjoined from using the name they believe truly represents their beliefs, which seems troubling from a free exercise perspective and also conflicts with the Court’s emerging doctrine of giving religions most favored nation treatment—since gripers and for-profit news and entertainment speech get better treatment against infringement claims, these churches probably should too.  

What is to be done?

The rule that I think is what current First Amendment doctrine requires: trademark law may be applied to noncommercial speech when it satisfies strict scrutiny: the regulation has to be the least restrictive means of satisfying a compelling government interest. This could in theory be done by categorical balancing, so we could end up with three different rules for gripers, for profit noncommercial speech, and religion v religion disputes, but each one should focus on naming speakers, not just source identification, and relatedly on a remedy that provides audiences who care the opportunity to identify who’s speaking.

Of specific note, Rogers itself may not fully replicate direct First Amendment analysis of a liability claim against noncommercial speech. In general, the content of noncommercial speech may be regulated only to further a compelling government interest, and the regulation must be narrowly tailored and the least restrictive means of accomplishing that compelling interest.  At least in its “explicit falsity” prong, though, Rogers tailors potential liability for noncommercial speakers more closely to classic fraud, excluding most noncommercial speech from trademark liability. But there are several remaining problems. First, requiring artistic relevance wrongly puts the burden of justification on the noncommercial speaker.  Second, Rogers does not impose a materiality requirement, and it is hard to see how the government has a compelling interest in protecting consumers from confusion they don’t care about.  Finally, Rogers does not require courts to consider a disclosure remedy instead of the full range of Lanham Act remedies including injunctions and damages, suggesting a failure of narrow tailoring.

Felix Wu: impersonation cases—when an impersonation statute is consistent w/the First Amendment—has to lead to material harm or material benefit

Q: religious piece of it: how much is about religious speech and protecting a particular ideological perspective—framed as neutral but really protecting the dominant ideology that is more attuned w/decisionmaker

Rosenblatt: is there something regarding different kinds of potential confusion: the kind of confusion in Rogers that isn’t important enough to stop is sponsorship, not passing off. If that creates a principled distinction that means we’re not violating the MFN idea.

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