A Trademark Law Reaction to Yoshino

**Warning: Dry legalese to follow. Why don't you look at my thoughts on Ann Althouse's thoughts on hip hop instead** As promised, here are my slightly more thought-through reactions to Kenji Yoshino's piece in Slate drawing a parallel between argments against same-sex marriage and the rationales underlying the tarnishment aspects of trademark dilution law. Yoshino more or less captures the major reason why the comparison fails, even if his language seems a little sloppy from a trademark focused perspective.* In fact, he could go a lot farther with his point. A mark loses its entitlement to trademark protection when it becomes generic - meaning, basically, when it's used in association with multiple sources of goods or services that do not have control over the quality of each other's respective products. In a nation of serious religious and cultural plurality, marriage seems to be clearly a generic term - no normative community can claim control over it. The trademark metaphor, then, would suggest that it doesn't qualify for protection from dilution. In that sense, Kenji's metaphor is actually stronger and more illuminating than he gives himself credit for. His treatment of trademark law itself, though, is frustrating to say the least. First, he defines tarnishment in reference to Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972), the infamous case finding that a poster with an "Enjoy Cocaine" parody impermissably tarnished Coca-Cola's logo. This is certainly the most famous tarnishment case, but it's not a paradigmatic one - both because it's questionable if a poster really is a commercial use of the logo and because it seems likely that the parody exception was misapplied by the district court. Since this is a decades-old opinion with no precedential effect and questionable basis, it's really not an appropriate thing to trot out to explain tarnishment. Academics like the case because it makes tarnishment law seem unreasonable and oppressive, but there's a real danger to cotributing to continuing public misunderstanding of the potentially limited scope of IP rights (covered somewhat here). Update: This post has a "first" without a second. That's because I can't completely decide if I have any issues with his discussion of tarnishment and the requirement of an activity that is "uniformly deemed unsavory." I'm not sure I have much to add that's beyond nitpicking. The thrust of my more global issue with Yoshino's argument is very simple, though. Yoshino writes as if we give someone trademark protection because they created and built up goodwill for a mark. That's not true. Creation is immaterial. We give trademark protection because people built up goodwill first and - more importantly to his point - didn't just sit on their rights letting a bunch of other sellers generate their own goodwill while using the same mark. In that sense, trademark is that much better a metaphor. * For example, Yoshino says "First, intellectual property law seeks to protect intangible goods that belong to people because they have created and built up good will for them. No such claim can be made about state-sponsored marriage, because no individual invented marriage, and no individual owns it." The first sentence mixes IP regimes in a way that leads to some conclusions that aren't strictly true. For example, the work people put into creating a trademark has nothing to do with our rationale for protecting it. Similarly, goodwill has nothing to do with our rationales for protecting patents and very, very little to do with our rationales for protecting copyright. The sentence would be much more accurate if it replaced its "and" with an "or." The second sentence is similarly confusing in its reference to invention - which evokes a patent, not a trademark metaphor. This sort of careless lumping together of the terms, assumptions, and rationales of IP regimes is rightly denounced by Kenji's colleague Yochai Benkler, among others.

Dr. Helen versus the Womynists

Another day, another ridiculous post from Dr. Helen about "men's rights." Her unwavering Injustice Detector spots an immediate double standard: Just touching a woman or even making a comment is often seen as sexual harassment that can get you placed in sensitivity training, on probation or fired, while massaging men at work doesn't raise an eyebrow--not even from the men who aren't looking for a free back rub. That's right - you can get fired simply for making a comment to a woman! I remember, at my old workplace, I once said to a female co-worker "I hear great things about your products liability memo!" Needless to say, I was immediately terminated, and my employer received a sizable judgment against me to recoup its losses in her subsequent multi-million-dollar lawsuit. That's why, at my new job, I maintain constant contact with my Male Liability Protection Network of male co-workers and paid female informants to make sure that I never run the unjustifiable risk that comes with bumping into a woman in the hallway, elevator, cafeteria, parking garage, or in any meeting (I have to call in sick a lot!). It's a hassle, but that's just how things are in the Age of Men's Oppression. Meanwhile, of course, it is unheard of for a man to decline any physical touching. If the Network fails and a woman does find me, I know that I must abjectly accept the inevitable "pant integrity slap-tests" and attacks from "Ms. Tickletron O'Nimblefingers." Until my masculinist brothers and I rise up, it will always be more of the same.

And using sociology makes Sociolaw, and using economics makes Econolaw, and...

Jeff Rosen has a fun little piece on law, neuroscience, and the horrible neologism that is "neurolaw." I don't doubt that advances in neuroscience will work some consequential changes in some areas of the law in the next few decades. But I'll admit that I don't think it'll be quite the revolution some people are expecting. For example... Jones and Marois talked excitedly about the implications of their experiments for the legal system. If they discovered a significant gap between people’s hard-wired sense of how severely certain crimes should be punished and the actual punishments assigned by law, federal sentencing guidelines might be revised, on the principle that the law shouldn’t diverge too far from deeply shared beliefs. Yes, or you could just ask people about their deeply shared beliefs. It's not terribly clear what the neurological data adds to the issue. But that's minor compared to the obligatory hand-wringing about the End! of! Responsibility! “To a neuroscientist, you are your brain; nothing causes your behavior other than the operations of your brain,” Greene says. “If that’s right, it radically changes the way we think about the law. The official line in the law is all that matters is whether you’re rational, but you can have someone who is totally rational but whose strings are being pulled by something beyond his control.” In other words, even someone who has the illusion of making a free and rational choice between soup and salad may be deluding himself, since the choice of salad over soup is ultimately predestined by forces hard-wired in his brain. Greene insists that this insight means that the criminal-justice system should abandon the idea of retribution — the idea that bad people should be punished because they have freely chosen to act immorally — which has been the focus of American criminal law since the 1970s, when rehabilitation went out of fashion. Don't tell John Calvin or Pierre-Simon Laplace, but apparently the neurolawyers think they've invented determinism. Strong arguments that free will is a fiction are nothing new. They've always created a tension with our legal system's decision to embrace the fiction. Again, I don't see how specific advances in neuroscience alter the equation. To be fair to Rosen, he does provide space for Stephen Morse's critique of neurolaw boosterism, which hits a lot of these notes. It's a little frustrating, though, to see such good arguments buried deep inside an article,.

On Hoax Devices

Frustratingly, but unsurprisingly, a good deal of the coverage of the Boston Mooninite Attack mentions the "hoax device" charge without providing the legal definition. From Massachusetts General Laws Chapter 266 Section 102A 1/2: (b) For the purposes of this section, the term "hoax device" shall mean any device that would cause a person reasonably to believe that such device is an infernal machine. For the purposes of this section, the term "infernal machine" shall mean any device for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically. For the purposes of this section, the words "hoax substance" shall mean any substance that would cause a person reasonably to believe that such substance is a harmful chemical or biological agent, a poison, a harmful radioactive substance or any other substance for causing serious bodily injury, endangering life or doing unusual damage to property, or both. So, basically, the men placing the devices broke the law only if a reasonable person would believe that they were bombs or some other comparable weapon (and if all other legal requirements are met). But people in nine other cities had no problem recognizing them as non-bombs. That doesn't conclusively exonerate the sign-placers, but I think it makes for a pretty hard case on the state's part. Adding: "Reasonableness," for the non-law-people out there, is simply a legal contrivance that lets the state treat difficult, situation-specific normative questions as questions of fact and shunt them off to a jury. It's classically used in the tort context. What's the appropriate amount of care? The amount a reasonable person would exercise, of course! Duh! What makes this case so interesting is that it poses the question of how much our hypothetical "reasonable person" has been affected by the so-called "new normal" state of affairs vis-a-vis terrorism. Would a reasonable person, in 2007, think those things were bombs? What about in 2003? What about in 2000? Adding 2: Looks like the state is facing an even tougher mens rea requirement... Judge Paul K. Leary told Grossman that, according to law, the suspects must intend to create a panic to be charged with placing hoax devices. If that's an accurate statement of the law, I wouldn't want to be the prosecution. Adding 3: Yep, there's a clear and stringent mens rea requirement in the statute: (a) Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment. Emphasis added.