Protecting Brands: Internet Trademark Law

Monte:-“Great Hey Noel you still on.

Noel:-“I’m here. I went to the trademark session at the FCS show one. I like to attend with the lawyers up their a lot of issues one of the questions, I had two but what is the statute of limitations in these areas, in what I have time to act. The 2 nd issue is and there was a lot of confusion at the conference is there is a lot confusion with trademark brands and with intellectual property and those protected and property are separate and people think they have a right to the name and where Google is profiting off their name and was wondering if you would speak to that.”

Jay:-“Let people know about this. I’ll give you the 2 nd answer and give you my short answer to that and that is trademark attorneys have developed a strange expectation about how trademarks should work and I’ll give you an example. I was looking to find a bottle of Excedrin. The clerk says aisle 3 and what do you think was on the shelf- what was on the shelf- Bayer, Advil, Motrin, and Excedrin in aisle 3 didn’t consist of a 100 ft. high wall of Excedrin. And when I’m driving down the road at night ready for a drink and I see a neon sign in the bar window, I was shocked when I went inside and the bar had a tap that had Budweiser, Michelob, Coors trademarks just because somebody types it, if I type in Mercedes into search I might be looking for a luxury auto but in the real world I might be looking for anything in the class. The thing that amazes me is there is always that one street with all the dealerships on it, the reason somebody might be looking for Ford or Chrysler looking for Trademarks to distinguish competitive products in the marketplace using trademarks as this lever to train people to do this is the only thing you will ever see in this line of products that’s the short answer. Attorney’s have gotten this idea that things can be done on net that doesn’t happen in real life that should be done in a very confidential manner. Take your search analogy with Excedrin what happens when you walk in door of a search engine and they say aisle 3 and you walk over and between your walk you get info and it’s passed through a system to Tylenol that says this guy is looking for Excedrin and Tylenol says that we’ve got a rule for that and Excedrin ends up on the bottom shelf and Tylenol on all other shelves and the grocery store is profiting greatly from Tylenol to suppress you.”

Yeah, you know its an interesting problem Where you need to start- is not what my idea of the internet should be like, its trademark law not what the internet should be. We need to think that trademark law is the same on and off net. That would seem a little strange. Grocery stores do that. They have 25 week contracts with one soda company and one with another and store has a lot of that at eye level. The brand you were looking for is at the bottom shelf. This is frustrating the big brands who spend a lot on advertising and people are looking for them and have to pay premiums and the competition is paying me a hell of a lot more. So, I suggest even though your first request is Excedrin but that’s what happens in the real world. They see endcaps along the way and at the checkout line, I buy 10 cans and out pops a coupon for another brand of dogfood. You know and within limits that’s what competition is and new brands battle established company’s products and consumer behavior, and they are bound by fair competition and that is the broad category and broad categories that trademark law straddles. Fascinating push and shove how many years does it take to figure this out? Have to wait for some years, for some of these judgments.”