How Trademark Law Harms Peoples' Lives and Wealth

Trademark, copyright, and patent law are three segments of the same basic concept: protecting businesses from unlawful use of their property. Unfortunately, a system that arose during Roman times has not been satisfactorily updated for the digital age. Particularly with issues regarding patent and trademark law, updates will be necessary to make sure that laws remain enforceable and do their work of protecting businesses.

Quick history of trademarks
Trademarks are believed to have arisen during the Roman Empire, when swordsmiths needed a system to indicate who had made a particular sword. Better swordsmiths, over time, were able to charge more for their work. The swords were distinguished from lesser efforts by their mark.

Trademark law protects what we commonly call "brands" or "logos," although jingles and phrases have occasionally been trademarked as well. Patents refer to inventions, and prohibit one inventor from copying another inventor's work without paying a licensing fee. Copyright is most commonly applied to musicians and writers. In general, all three laws allow for "fair use" in one method or another; this is particularly murky, however, in copyright law.

To prove misuse of copyright, trademark, or patent, companies usually needed to demonstrate willful misdeeds. In the case of trademarks, accidental misuse can sometimes be prosecuted, but court awards are usually much lower, if they are given at all.

The problem with patent law
In the United States, patent laws date back to Colonial times and the United States Constitution. Patents have been viewed favorably and unfavorably at different times in American History. In general, during healthy economic times, patents are viewed as driving investment, innovation, and economic growth. During depressions, patents are viewed as economically unhealthy, and geared towards creating monopolies.

While patent law has worked to prevent inventors for many years, in 2011, This American Life did an episode of their show on a particular Silicon Valley phenomenon called "patent trolls." Patent trolls are companies which do not conduct any kind of business of their own, but simply buy patents from inventors, and then threaten companies which are using those patents with lawsuits. Since American courts have been very pro-patent since the Leahy-Smith America Invents Act of 2011, companies generally have no choice but to pay the patent trolls fees, or stop using patented technology.

According to Perry Clegg, founder of Trademark Access, patents are actually hurting innovation and harming economic growth. "Because so many technological developments piggyback on each other, it is sometimes impossible to create the next big innovation without incorporating previously patented technology." When big innovations were decades apart, this might not have made as much difference. At the rapid pace of modern technological development, patent trolling can discourage companies from innovating, if they feel it likely that they will have to pay exorbitant fees to companies who exist only to prosecute based on perceived infringement.

The problem with copyright
In some ways, copyright law might be the murkiest of these three sections. Arising in England in 1710, copyright was originally, quite literally, who had the right to copy a book. Over time, the act was expanded to include translations, derivative works, and a variety of expressions, such as sound recordings, performances, paintings, and much more.

The concept behind copyright is simple: the expression of an idea is the inalienable ownership of its creator. The idea itself cannot be copyrighted, but the way that an author records it is. Anyone can write a book about a zombie plague causing a post-apocalyptic landscape, but write that story with a main character Rick, who has a son, Carl, and include other specific details that are associated with The Walking Dead, and the story is likely to become copyright infringement.

But the question of where something crosses over from infringement into derivative has troubled courts for years. Parodies are often given a great deal of license, as are satires and commentaries. These are often covered under fair use. But modern technology has created substitution algorithms that allow "authors" to take a published book, change just enough of the language to get through digital protection, and repost works that are not, in any meaningful way, their own. Proving infringement and having these works removed from sale can be difficult, especially for self-published or independent authors.

Trademark and patent laws must be updated
A generation ago, it was mostly big businesses that were concerned about protecting patents and trademarks. Now, as many more small companies are entering the technological fray, it is necessary for patent, trademark, and copyright laws to be updated to keep up with the digital times.

Especially as we move towards the age of the Internet of Things, these changes will only continue to accelerate. If government officials are not careful, outdated laws run the risk of stifling growth and harming innovation.