Novelty, originality and trademark

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2 comments

  • I’m a graphic designer and not a lawyer but it seems to me that the philosophy behind copyright is a romantic view of expression—something that arises from an individual human condition—and the notion of patent is that it is about invention–i.e., the manipulation of stuff somehow external to individual humans. Originality implies that it somehow came from within me and is an expression of me and novelty just mean that it is different. Wait minute. “Just” seems to mean that novelty might be a subset of originality but if you and I arrive at an expression independently, we are both original but not novel.

    Learned Hand said that “if by some magic a man who had never known it were to compose anew Keats’s ‘Ode on a Grecian Urn,’ he would be an ‘author,’ and if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.”

    Each poem would be original but the newer one would not be novel.

  • I agree that trademark is not properly regarded as intellectual *property.* It’s a *consumer protection regime* where we’ve outsourced enforcement to private Attorneys General – the trademark owners. It shouldn’t be a right in gross, and we also don’t treat it that way in some important respects. For one, while it has an unlimited lifetime (compare copyright, patent), it is much more fragile than those two in that it can be destroyed anytime if it loses its secondary meaning.

    The expansion of exclusive rights to “sponsorship and affiliation” (as opposed to logical, purely source-identifying uses), along with claims for dilution and tarnishment, don’t protect consumers very much at all. On the other hand these expansions protect major corporations a lot.

    Consider who pays whom when someone decides to name a stadium after a bank or a sugary beverage. The flow of money there is reversed from that of a traditional trademark license. And yet, whether this kind of sponsor/affiliate use is actually approved by the owner (who is paying dearly for it!) makes *no difference whatsoever to consumers*, because consumers don’t attribute the goodwill of baseball games to bankers or the contents of 20oz. bottles. If they did, PNC Bank would have long ago gone out of business (the Pittsburgh Pirates play in PNC Park, and were under .500 for 20 consecutive years starting in 1993).

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