Up … and Away

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2 Responses

  1. A.J. Sutter says:

    I’ve been an IP practitioner for 20+ years, admittedly without ever needing to resort to the theory of public goods for my billable work, but I did not understand the point of this post. It seems to me that “Fenton’s” is probably a trade mark, at least under a common law theory, whereas the hamburger cake is just a product, probably not protected under a valid design patent. If I were Disney’s lawyer I would have made the same call. Sorry to say I think this is a case of economic theory, abetted by a hyperactive literary style, making the simple seem much more difficult.

  2. Mike Madison says:

    It’s the practicing lawyer’s job to make the difficult seem simple; if you’re Disney’s lawyer, clearing the rights to Fenton’s and not to the hamburger cake (which I’d characterize as arugably distinctive, non-functional trade dress, if I wanted to be really, really conservative) is a simple call. Not clearing the rights to either one would be a simple call, too. After all, it’s Disney. Fenton’s might have complained, and Disney could have stuffed it up their Dug. That’s the knife fight; Disney is Butch, and Fenton’s or the Merrit is Harvey. (Take your pick.)

    But the scope of what’s a protected mark isn’t supposed to be measured by a practicing lawyer; it’s supposed to be measured by the consuming public. That’s the little paradox in Up. The public is supposed to decide what’s owned and not, in trademark terms. The lawyers and the filmmakers are proxies, and arguably they are poor ones.

    In copyright and patent doctrine, what the public thinks about what’s protected doesn’t matter so much. (It does sometimes — scenes a faire in copyright; identifying abstract ideas and products of nature in patent — but infrequently.) Instead, public goods theory suggests that some things should be protected; doctrine tends to follow. The paradox in copyright and patent is that there are some pretty obvious examples of (theoretical) public goods that aren’t protected by IP rights, and no one is worse off. That’s the little paradox of time and watches. If copyright and patent law are supposed to be solving public goods problems, then arguably they’re doing a bad — or at least sometimes unnecessary — job.

    The point of the post is that these two themes are connected, and it’s interesting to kick around how that might be so. What’s public, when, and why?

    As for the literary style, for better or worse I plead guilty. I had enough stifling linearity in 9 years of practice to judge when it’s needed, and when it’s merely dull. ;-)