This post may be a bit controversial even for liberty lovers, libertarians and conservatives. Most people never have a second thought that we need trademarks, patents, or copyrights and they often will say it is property (intellectual property), but is it really property and are they too broad ranging. I am writing this due to an experience of my own within this site. Though it actually affected me now I have held this view for quite a while.
What is a Trademark?
Trademarks, patents and Copyrights are all considered types of intellectual property. From the United States Patent and Trademark Office they define a trademark as “A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.”
In a nutshell it is basically words or pictures that your company uses to identify itself. Nike would have the swoosh and “Just Do It”, but also Nike the word would be part of that. The other thing with trademarks is they must be for a specific industry. With my understanding if Nike only held it for shoes and clothing (though they probably hold it for more products), then someone else could use the word Nike as Nike metal company as it doesn’t have anything to do with it.
What is the importance or supposed importance of a trademark?
Essentially a trademark is in effect so other companies will not use names, marks, images that you have made and making others think that you are the same brand and hurting the reputation of other brands. If another company is using the same logos and names and images in your industry people will probably think it is your company and if the impostors made a poor product it could look poorly on your company. There are probably other reasons, but this is really the main reason I can find.
What are the problems with trademarks?
I would agree that if someone is using all your information and selling their product as part of your product that could be an issue and that is a misrepresentation and actually more of fraud as they are saying their product is made by you. I think that may hold some different consequences as it is a blatant fraud and might even mean they are impersonating someone else. With that being said I don’t even necessarily agree that knockoffs should be illegal as long as they are sold as such. We all know of the Fakelys (fake Oakley sunglasses), the knock off rolex watches or the knock off Coach purses. Is it a possibility that they could lose a sale from these companies that sell actually fake imitations? I would think it is unlikely as those buying a fake rolex for $20 for one are not likely going to buy your $5000 watch and 2 they aren’t thinking they are getting the same quality either, they just want something that looks like it. Again if the company was selling it as 100% authentic and had some kind of fake authentication paper that likely changes the whole game to fraud and possible forgery. Some may disagree with me on the knockoffs and that is fine.
So now we come to my story. As you may know we had the Lady Libertea that has now been rebranded and renamed to Miss Libertea. When I made the teas I didn’t really do any trademark research I just made them thinking I was being so smart with the naming. I was doing some SEO stuff looking at where I ranked for certain keywords. I decided to check Lady Libertea and I was already ranking at somewhere around 50 or so which is actually really good for a week going. My ranking software also lets me know who is ranking very high. So I looked at that and then realized the top ranking was for Snapple. They have packaged bottles of tea called Lady Libertea. As soon as I saw that I said “Oh Crap!” I then actually started thinking about trademark issues and found the USPTO trademark database. I looked it up and sure enough in 2015 snapple had trademarked Lady Libertea. At this point I made the decision to change the name to Miss Libertea and am in the process of getting that corrected. When looking at the trademark they obviously had it in the same industry of tea. I proactively made the choice to change it to stay within the law even though I believe it is total nonsense. I use totally different font, I have a different logo and different illustrations, we have tea bags while theirs is a liquid tea drink, and there is not a person in their right mind that would think Teas for Freedom has anything to do with Snapple. Especially with big brands they are much more willing to get on your case and definitely will send a cease and desist and some like Nintendo are not that nice and will take you straight to court. In this case it was quite easy to change as we had a low number of the teas packaged. I also then checked all other teas, product names and our brand name and we look to be safe on all other fronts. Megan the other co-owner of Teas for Freedom, and my wife, also knows another company that had to totally change it’s name due to trademark issues in which another company had a product name close to the individuals company name. In that case it is much harder to change that with logos, product tags and many other issues.
As you can see in many circumstances trademark infringement isn’t malicious at all, they are by small companies that don’t even realize they have done it, they don’t have tons of money to shell out for trademark lawyers, their names of things may not even be exactly the same, the infringement may really not even be a problem, it is a chunk of money to get a trademark and it seems to be a bit too broad. Again the fraud end of it with people selling something as another company I think is the main thing that really is the issue and could probably be dealt with more as fraud. But really should a phrase like Just Do It or Lady Libertea be trademarked I would say no. This just touches the surface of the intellectual property debate. Is intellectual property actual property, I would fall more on the side of no. What do you think?