Up in smoke

Ever hear about people who buy ultra-expensive fine jewelry and then, concerned with security, keep it in a vault and wear a copy of the fancy stuff?  It’s a funny thing, and not usually an intellectual property issue, but it’s not as if there’s no logic to it at all.  The thinking, I have always guessed (for I wear all my ultra-expensive things for real), is that if you own it, you really have — dare I say? — the “equity” that makes wearing the phony version somehow okay.

Okay. Well, here’s an interesting twist on the concept that takes it a step further:  What if you know, for sure, that the stuff is not merely at risk of being lost, but is for certain to be lost, and forever, at least in this world.  On purpose.  Susan Scafidi (bless her, actively blogging again!) explains:

In traditional Chinese funeral rites, the dearly departed aren’t expected to pack lightly for their trip to the next world. Instead, family and friends send them on with everything they’ll need, from traditional money, food, and houses to modern cars and luxury handbags.  The catch?  These items aren’t real, they’re paper, and they’re burned as part of the ceremony.

The New York Times reports, however, that the owner of a shop on Chinatown’s “funeral row” was arrested for selling paper Burberry, Louis Vuitton, and Gucci replicas.  While these companies are understandably protective of their often-imitated intellectual property, a licensing agreement might be more beneficial than an enforcement action for all involved.  If marketers for major brands are excited about the growing Chinese market now, just think of the potential for keeping good customers even after they’ve passed on.

Sort of a Lower East Side luxury-brands Valhalla, I guess.

It’s kind of hard to imagine these companies going in for a license that’s going to result in a mass, public destruction of their precious brand-equity-units, isn’t it?  Still it’s a long way from there to justify having people arrested for this.  (Is the state officially an arm of Big IP now?  This takes “trademark bullying” to a new level — not that there’s anything wrong with that!)

Look, you can see why selling the paper items, in and of itself, is going to be barred; that merchandise is certainly dilutive of the trademark value of the stuff, if not an outright infringement — and it probably is an outright infringement.  But let’s say, as Susan seems to have in mind, that you could control for the possibility of the paper items being used only for this purpose, i.e., funeral-pyre-kindling.

If you could “assume a can opener” (as we econ weenies say) and assure that the paper stuff is only going to be sold and used for this purpose … or, more boldly, if you say you’re prepared to argue that these paper replicas are so unlikely to be confused that they are not usable for anything remotely like the real things are — then this would seem to be fair use, wouldn’t it?:

Fair use or nominative use can only be used [sic] when the use of the trademark does not imply affiliation or sponsorship with the owner’s product or services, and will not confuse the reader into thinking the owner of the mark has something to do with the use.

Moreover:

If someone sues you for trademark dilution, you can argue that your use of the famous trademark was “noncommercial.” Congress created this defense, found at 15 U.S.C. § 1125(c)(3)(C), out of concern that dilution claims would impinge on the First Amendment rights of critics and commentators.

Is this fair use?  Seems like a fairly usable argument to me.  It’s commentary; symbolic; not necessarily commercial in and of itself.

But don’t let’s get all inflamed up over this.