LV Loss is About the EU, Not Handbags

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Some of my IP friends are posting today about Louis Vuitton’s loss last week of a trademark fight over its checkerboard pattern in the EU General Court. This was news in Europe when it happened (the IPKat, a great resource for EU IP happenings, reported on it at the time), but it was only picked up on in the popular US fashion press today (here and here and here, for example).

LV is a very vigorous (some would say bullying) trademark litigant here in the US. And so there may be a tendency to chalk up this opinion to their pattern of overreaching on substantive trademark law. But it’s always a good idea to read the actual decisions (here and here). Because when you do, a somewhat different picture emerges.

To my eye these cases are not so much about trademark law as they are about the legal and economic structure of the EU (in the particular context of community-wide IP rights). The key language (paragraph 84 in both opinions) is:

“It follows from the unitary character of the Community trade mark that, in order to be accepted for registration, a sign must have distinctive character throughout the European Union.”

In other words, to get community-wide protection a mark must serve as a trademark in every member state, not just a few, or even a majority. This creates a higher evidentiary burden for LV, but potentially not an insurmountable one. It also provides an incentive for manufacturers and merchants not to ignore the peripheral EU countries when marketing their products. It is, in other words, less about trademarks than it is about trade. But in any case, it’s a fascinating issue for those who are interested in the increasing internationalization of IP rights and regimes.

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.

“Who Should Pay for Progress?” to Kick Off IPSC 2014 at Berkeley

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Well, this is a very nice surprise.  It looks like my current research project, “Who Should Pay for Progress?”, has been selected as the first presentation of the opening plenary session of the 14th Annual Intellectual Property Scholars Conference at UC Berkeley in two weeks. IPSC is the largest annual gathering of the intellectual property law academy, with over 150 scholars from all over the world presenting this year. As in past years, the organizers seem to have reserved the six plenary spots for relatively junior scholars–one of the more generous practices of an unusually generous scholarly community. Obviously I’m extremely grateful to the conference organizers for selecting my project; I’ll do my best not to disappoint.

Remembering Dan Markel

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Dan MarkelDan Markel was killed yesterday. Dan was a distinguished young law professor at Florida State University, and founder of PrawfsBlawg, one of the first and most successful group law professor blogs (his blogging colleagues have posted a heart-rending notice of his death). Everyone I know in the very small world of legal academia seemed to know and like Dan. I knew him, and I liked him.  But frankly, I didn’t know him as well as I should have.

We were facebook friends; we exchanged likes on posts about our professional milestones and on photos of each other’s children, we sent one another birthday greetings (his always came with a “happy bam bizzle”). I did a stint guest-posting on Prawfs a couple of years ago, and Dan’s warmth and gratitude was palpable–over email.  But we worked in different fields–he in criminal law, I in intellectual property–and never found ourselves at the same conferences or workshops.  We never worked on the same faculty.  So we never really formed the kind of personal relationship so many of my friends and colleagues are now reminiscing over in their grief.

I always figured I’d get the chance to get to know Dan better in person someday–we were both relatively young; he often found himself in New York; we both had long careers ahead of us, or so I thought. Since hearing about his death, I’ve been trying to wrap my head around the notion that this someday isn’t coming, and everything I’m ever going to know about Dan is already in the world, somewhere, fading.  I’ve spent the past few hours trying to gather some of these rosebuds, and it breaks my heart.

I never realized how much my own professional life has been lived in Dan’s shadow, as if I’ve always been walking two steps behind him. We were, briefly, contemporaries in law school; he completed his service on the Harvard Law Review just as mine was starting.  When I decided I wanted to be a law professor, I took advice from Dan’s blog, not realizing he had founded it less than two years earlier (shortly before he started his academic career).  He had two young sons, his “bears,” each only a few months older than my two boys–tonight I can’t think more than a few seconds about this without weeping or trembling.  Finally, he spent the past decade trying to build and defend a theory of his field that depended not on detached calculation of cause and effect, cost and consequence, but on a fundamentally moral sense of what we as a democratic community of equals owe to one another, and how we should go about trying to fulfill those obligations. It’s only recently occurred to me that my career is shaping up to be about the same thing.

Because I never really got to know Dan personally, all I’m ever going to have to remember of him is his undeniable warmth and the ideas he left behind in his writing. And his ideas resonate deeply for me, though I suspect he and I came to our intellectual commitments by somewhat different paths.  Dan and I were both raised in the Jewish faith.  He embraced and lived that faith; I, ultimately, rejected it in favor of a more secular humanism. Whatever the sources of our intellectual commitments, though, we each came to believe strongly in equality, in democratic solidarity, and in the dignity of moral agents.  Perhaps most importantly, we each came to believe that these values are something we owe to one another as individuals, but practice together as a community.  The difference between us is that Dan actually built a community around himself that reflects these values, and tonight as I listen to that community mourn in disbelief, I’m painfully in awe of the achievement.  If I am still trying feebly to interpret the world, Dan in his too-brief life really did change it. I wish I had done more to help him.