The Nice Classification and Law’s Expressive Function

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Happy New Year! For trademark lawyers, today marks the entry into force of the 2015 Version of the 10th Edition of the Nice Classification. This is the classification system that trademark owners refer to in identifying what types of goods or services they are claiming a right to use their marks with. (Trademark law allows for concurrent use by different users in sufficiently distinct product or service categories–think Delta Faucets and Delta Airlines). Just scanning the USPTO’s helpful list of “noteworthy changes” in the 2015 version, I’m reminded how much trademark law is a window into society, and how it can be example of what Cass Sunstein called the “expressive function” of the law.

Glancing through the list, we see that e-cigarette fluids are now firmly associated with smoking and tobacco instead of chemistry; that 3D-printers are considered less a scientific curiosity and more a useful tool; that the government is no longer quite so particular about categorizing sex toys according to precisely how they get you off.

Of course, against this apparently progressive list of changes are some more troubling indicia of an increasingly stratified and commodified consumer culture. We must now be careful to distinguish custom tailoring from mere clothing repair. We apparently need separate categories for all the various specialty mitts one might use for different household tasks–whereas once a washcloth could be used in the shower or on your car, now you need two different specially-designed gloves to achieve both tasks–and be sure you don’t confuse either with the different specialty mitt you use in the kitchen. And because even in our social interactions we’d rather spend money than time and effort, there is now legal recognition for branded gift wrapping services.

So that’s where we’re headed in 2015. Whether law is leading or following, I’ll leave you to decide.

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