My old pal Lynn Harris a.k.a. Breakup Girl just published her first novel, called Miss Media. Lynn has a great sense of humor and a kick-ass writing style, so definitely check it out. I'll post a review as soon as I finish reading my copy.
eVisa Looks to Get Stamp of Approval from Ninth Circuit
Wendy and I attended the Ninth Circuit argument today in Visa v. JSL Corporation (aka EVISA). The panel was pretty good -- Berzon, Paez, and the new guy Bybee, so we were hopeful that things would go eVisa's way.
The key issue raised by the panel was what the heck to do after Moseley v. Victoria's Secret, where the Supreme Court held that in order to prove dilution, you needed to show actual evidence of dilution, not simply a likelihood of dilution (the latter being similar to the standard for trademark infringement).
The panel didn't seem to have many ideas, and neither did Visa. JSL had one where you compare people's impressions of the famous mark (here VISA) before and after they're exposed to the junior mark (eVisa) to see if they thought less or at least differently about VISA. Still, I think it will be quite a challenge for courts to come up with a good test that can stand the test of time like Sleekcraft and Polaroid have.
Part of the problem is that even though dilution feels a lot like trademark infringement, it's more like the opposite. Trademark infringement is about consumer confusion. If two brands of laundry detergent both call themselves TIDE, we'll never know which is which when we go to the grocery store. However, with Dilution, it's not about confusion, its about distraction. I doubt most people would think that a bicycle store that sells KODAK bicycles is really the film and camera company. But it does force them to make a mental note that KODAK can now mean two different kinds of products instead of simply one famous one. That's blurring; that's dilution. No one is confused.
Because of this difference, the Supreme Court in Moseley was able to identify only one clear case of actual dilution -- where there are identical fanciful marks, e.g., Victoria's Secret (the famous lingerie company) and Victoria's Secret (a cheesy sex novelty shop). These marks don't have any other meaning than as brand names and force consumers to keep two mental spaces in their minds to differentiate between the two vendors. This distraction takes away from the "fame" or distinctiveness of the dominant mark because it "blurs" what the mark can mean to a consumer.
This becomes even more complicated, however when there is a third meaning to the word mark -- an english language meaning. For instance, here, visa means a travel document. Visa also means a credit card company. And eVisa is a website that offers business services for foreign travellers. Both companies draw meaning into their trademarks from the english language word "visa" -- Visa (everywhere you want to be) and eVisa (foreign travel), and as such, it becomes difficult to tell whether eVisa blurs Visa's famous mark or if eVisa is simply drawing on the association from the word visa. In other words, it might well be the word visa which is blurring Visa's famous mark and eVisa is simply associating itself with this "natural" blurring.
Pretty circular stuff, eh? The important point of all this is how much control companies like VISA get to have over things like domain names. If VISA can take away evisa.com from JPL, then they can pretty much take away any domain name with "visa" in it under the same theory. Over time, corporations will suck up most english language domain names as their "property", leaving little left for individual use. Companies are certainly entitled to protect their trademarks from attacks that undermine their strength, but when a company like VISA voluntarily chooses a brand name that already has meaning in our culture, they have to accept the fact that the rest of us still get to use it, even on the Internet.
 For those of you unfamiliar with the case, Visa (the credit card company) has sued JSL Corp. for registering evisa.com, claiming that evisa.com "dilutes" their famous "Visa" brand under the Federal Trademark Dilution Act. Evisa fought back, arguing that evisa.com is simply a website offering business services for foreign travelers and that the "visa" part of its name symbolizes access to foreign countries (i.e. the common dictionary definition of visa), not Visa, the credit card company. In other words, VISA shouldn't have a monopoly on all domain names that include the letters V, I, S, and A. The District Court went for VISA, granting an injunction against JSL's use of evisa.com.
WIPO Head Kamil Idris told an Australian news correspondent today that "Piracy is like terrorism today and it exists everywhere and it is a very dangerous phenomenon."
How is it dangerous?
Mr Idris described how he had heard of children dying after using counterfeit baby shampoo and warned of the potentially disastrous consequences of relying on machines that had been made using an illicitly duplicated model.
Excuse me, but those aren't intellectual property/piracy problems. False advertising is a consumer protection issue and a problem that everyone supports eradicating. In fact, if anything, the example of the shampoo demonstrates that the counterfeit shampoo is not copied from the original shampoo formula (which I assume is non-toxic), and therefore, not an IP violation. If IP rights are violated, then exact copies are made that should work just as well as the original. What we have here is a health and safety hazard, not the stealing of someone's ideas or creativity.
However, there have been several documented instances where WIPO's own high protectionist patent and data registration policies are actively hurting patient access to AIDS-related drugs and other essential medicines in the third world, Africa in particular. Here, IP law is determining the difference between life and death for thousands of people; yet WIPO continues to support restricting access to these medicines.
The fact that the head of the World Intellectual Property Organization doesn't understand these differences goes beyond disturbing, and the fact that he uses it to make a big splash in the press is disgusting.
Further Clarifying Thought: The irony of his statement is that a perfect IP violation -- a perfect copy of the shampoo formula -- would provide children with healthy shampoo while an imperfect or non-infringing copy threatens their health. Hardly seems to me to be an argument against perfect copying but rather one for it.
Reponse to Trademark Lawyers I've Offended: Some of you have written or commented that counterfeiting is an IP violation becuase it violates the trademark in the shampoo, which protects the brand name's quality. And you are absolutely correct. I'm not saying that there isn't an IP violation when someone counterfeits shampoo. But is the IP violation what's killing the children? And perhaps more directly, is it piracy that is to blame? Or is it the fact that the shampoo is poisonous? The counterfeiter could just as easily be selling "Bob's Shampoo" and children would die. Therefore, I don't think stricter enforcement of IP rights really addresses the problem; better health and safety inspections would.