Trademark Lessons

Martin Schwimmer’s Trademark Blog links to an instructive tale of one software developer’s efforts to take down an online pirate. His initial reactions:

1. This is why IP lawyers need to be forensic scientists;

2. This is why IP lawyers go after ‘middlemen’ such as ISPs;

3. This is why anonymity on the ‘selling’ side is against public policy. The way to resolve the privacy vs. consumer debate in arenas such as whois is to create commercial zones on the Web. If you want to sell, do so from a ‘.cert” and say who you are.

But he need not stop there. (Note that the Internet doesn’t add much to the problem; sleuthing of one sort or another has been bread-and-butter stuff for IP lawyers for decades.) How about this: instead of requiring no anonymity in commercial sales, why not restore a long-lost feature of trademark law, that the mark identify a particular seller? Right now, a mark only needs to communicate the fact that yesterday’s user of the mark is more or less the same as today’s user of the mark. Consistency, not authenticity, is the real key. But authenticity was the point way, way back when, and in theory, it could be again.