Copy Catfight

Reason, March, 2000 by Jesse Walker

In part, this shift reflects the increased popularity of "dilution" laws over the last several decades, culminating with the Federal Trademark Dilution Act of 1995. Under this rule, it is illegal to produce, say, Microsoft brand ramen noodles, even though that other Microsoft isn't in the noodle business, lest the lousiness of your pasta undermine the software company's reputation. When dealing with a famous mark, such as Microsoft, the dilution doctrine makes some sense: There is, after all, a reasonable argument that commercial misrepresentation is afoot. The courts have stretched the doctrine out of shape, however, applying it with little regard for whether the trademark in question is famous enough for "dilution" to be a possibility.

Furthermore, the very definition of trademark has been expanding for the last 10 years. Writing in the Yale Law Journal, Mark Lemley of the University of Texas notes that "companies have successfully claimed trademark rights in the decor of their restaurant, the 'artistic style' in which they paint, the design of their golf course, the shape of their faucet handle, the diamond shape of a lollipop, the 'unique' registration process of their toy fair, the shape of their mixer, and the design of their personal organizers." At some point, this stops being anything more than a way to club your competition.

The fiercest trademark battles, though, involve words, not images. As e-commerce sweeps the Internet, domain names--those ugly streams of letters that end with "org" or "net" or "com"--have become more valuable, and some companies have become upset over URLs that bear too great a resemblance to theirs. Many of the resulting conflicts don't even make it to court: The very threat of legal action is enough to cow the alleged transgressor into dropping its address, even if he'd probably prevail before a judge. "A lot of this is just bullying," comments Temple University's David Post. "A lot of these claims are totally spurious." But the simple cost of defending themselves is often too much for those on the receiving end of a legal threat. The plaintiffs in such suits tend to have more money and lawyers at their disposal.

Besides, given the vagaries of the justice system, the defendant just might lose. Late in 1999, a judge ordered etoy.com, a Web site run by some European performance artists, to take down its site or pay a fine of $10,000 a day. Its URL, the court ruled, violated the trademark held by the online retailer eToys. com--even though etoy had been around since 1994, well before eToys existed. If the older site is finally saved, its rescuer will probably be public opinion, not the common sense of a judge or jury. Two weeks after the injunction, eToys suggested that it may voluntarily withdraw its suit, its reputation battered by constant protest on the Internet. (At press time, the case is not yet closed.)

Now Congress has gotten involved, passing the infamous "cybersquatting" law in late 1999. Cybersquatting is the practice of registering someone else's trademark (or a famous person's name) as a domain name, usually in hopes of selling the domain to the trademark holder later. The new law prohibits such speculation, imposing fines of up to $100,000 and, in the process, undermining the adjudication process already hammered out by the members of the International Corporation for Assigned Names and Numbers, a.k.a. ICANN. Civil libertarians worry that it will also intrude on our right to use trademarks in real sites' addresses--that if I devote a site to criticizing Shell Oil and call it www.shelloil.org, or even www.shelloilstinks.org, I may be breaking the new law.