Raise High the Silver Oar!

When is a “vessel” like a trademark?

I’ve been fascinated by the arcana of admiralty and maritime jurisprudence since I took Federal Jurisdiction in law school and learned that in many courts, the mounting of a silver oar before the bench symbolizes that the court is invested, for the moment, with admiralty or maritime jurisdiction. How cool is that?
Since I have never practiced maritime law, however, and don’t really know my way around a ship or a boat, I take my pleasures vicariously, such as through the Supreme Court’s recent opinion in Lozman v. City of Riviera Beach. The question is (or was), what is a “vessel”? The petitioner, Fane Lozman, owned what he claimed was a “floating home.” He failed to pay dockage fees. The owner of his marina, the City of Riviera Beach, sued in admiralty (in federal court) in rem (as admiralty law permits) to collect the fees. If, under applicable federal law, the “floating home” was a “vessel,” then jurisdiction was proper and the case could proceed. The District Court, ruling on a motion for summary judgment, held that it was, and that the case could. The City recovered a judgment, purchased the floating home, er, vessel, at auction, and had the thing destroyed. The Court of Appeals affirmed the judgment.

The Supreme Court reversed, 7-2, in an opinion by Breyer, J., with Justices Sotomayor and Kennedy dissenting. The division between the majority and dissent is interesting enough, but the entire debate reminds me that the kinds of problems that beset trademark law – of all things – aren’t limited to trademark law at all.

Federal law defines a “vessel” (the type) as including “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” The Court majority held that the “floating home” in this case (the potential token) failed to meet that standard because “a reasonable observer, looking to the home’s physical characteristics and activities, would not consider it to be designed to any practical degree for carrying people or things on water.” The dissent agreed that the statute should be applied in an “objective” fashion but disagreed with the breadth of the considerations apparently made relevant by the majority – such things as the style of the “floating home”’s windows and doors; disagreed with the introduction of a “reasonable observer” perspective; and disagreed that the dispute could be resolved as a matter of law by the Court majority’s assessment of the facts. Why not remand, asked Justice Sotomayor? And give the maritime bar and maritime commerce a firmer and clearer rule on which to base decisions on things like maritime lending?

Why does this remind me of trademark law? Because trademarks, like (it appears) vessels, depend for their legal existence and validity on the interaction between some physical or at least material (visible) characteristics of the relevant “thing” (the mark) and how those characteristics are assembled into some meaningful pattern (a symbol of the source and the goodwill associated with the mark) not only by the owner of the mark, but also, and critically, by some relevant audience. If consumers don’t “get” the mark *as a mark*, then there is no mark, legally speaking. We have, as a result, all kinds of tools and techniques in law and business to understand and recognize “marks,” where the law strives for objectivity, mark owners strive for commercial predictability, consumers strive not to be taken advantage of and misled, and everyone has to deal with the fact that meanings and marks change over time.

Treating “floating homes” as “vessels” in the way that the Lozman majority does may not be jurisprudentially clear (Justice Sotomayor, it seems to me, has a point), but the concerns that she expresses with commercial predictability and “I know it when I see it” jurisprudence aren’t limited to this case. They’re well-established in trademark law. If the answers to “what is the mark?” and “Is that a mark?” question depend heavily on what some audience thinks those answers are, even an audience of “objective” or “reasonable” consumers, then the edges of trademark law are going to be unstable, because it’s always hard to know what consumers think or believe, even “reasonable” ones.  Trademark law in general deals with this problem in ways that resemble what Justice Breyer did here in Lozman: Sometimes a cigar is just a cigar — and sometimes, it’s just not.  Sometimes, I think, the Court is saying that these sorts of disputes just don’t belong in federal courts. And the majority will find a way through the statute – a plausible way through the statute – that delivers that result.  Treating a “floating home” as a vessel has a formal logic to it that may have defied the Court’s common sense.

Patentable subject matter, anyone?