I never took on the concept of trademark as such. For no reason. I actually didn’t specifically contemplated about patents either. All my thinking thus far was aimed at copyrights. Why? Because, first, copyrights, in my view, cause the greatest danger to culture and thus to contemporary civilization, and, second, copyrights commonly perceived as the least harmful kind of so-called “IP” (Intellectual Property). I want to slightly fill in the gap in my thinking today, for I encountered once again an argument (a comment on a Mike Masnick’s post at his Techdirt blog) that in fighting IP abuses it is necessary to distinguish between different kinds of IP, because they are regulated by different laws and are based on different rationale.
Well, it is probably necessary, but for what purpose? Casually the argument is used to justify one kind of IP against another or just to fight the very term “IP” for some reason.
I don’t see the either one as a right cause. I believe those who came up with the idea of IP were somewhat right for copyrights, patents and trademarks have a lot in common, since they all belong this or that way to cultural phenomena and drastically differ in this respect from material things.
Having said that I immediately conclude that trademarks are of no use and cause only harm. And now I can think about this specific harm or, which is much more interesting, what would be this world without trademarks whatsoever.
The first hypothesis is very easy to come up with, because I take it as an axiom that all relationships in the world of culture act in the opposite direction to those which seem analogues in the world of civilization (see Discrepancies between Two Worlds on this site). The simplest implementation of this idea here is just to presume that common rationale behind trademarks works right on the contrary to what happens in reality.
Let’s see. Suppose, there is no any restrictions in naming of a product, a company, a book and (it’s extremely important!) everybody knows and understands that. That is, a consumer, a customer, an audience do know they have to distinguish what they buy by its substance, not by name. This develops the situation when a product maker wishes to put on the product as much of the info as he possibly can and the law must be concerned with lies only.
Would it be profitable to make and sell counterfeits in such an environment or would it be better to develop your unique, let it be small and cheap, based on copying brand? When a customer is driven to look into and go after the substance the answer seems to be obvious. Thus, trademarks _must_ cause the opposite. Today a customer mostly relies on a brand name for the law defends it and pays less attention to the substance which is that very situation when a counterfeit becomes temptation for a product maker.