Earlier I mulled over the extent of the Milk Board's trademark rights in "got milk?", a generous view of which resulted in the termination of my auction for a Mimi Maternity nursing tank top emblazoned with "got milk!"

One puzzle was, why was Mimi Maternity still selling the tops, though evidently unlicensed? A quick foray into trademark cases quickly supplied the answer. The use of a trademarked phrase to amuse, and not to confuse, is a protected fair use, as a parody. So, for example, a poster showing a pregnant Girl Scout, with the motto "be prepared," was held to be a fair use. Pretty clearly, a breastfeeding mom is not going to be thought to be involved in the commercial sale of milk to the general public, and thus, well... (For those of you who think this whole nursing thing is just gross, consider, for a moment... is it any grosser than drinking the bodily fluids of a cow?). The Milk Board doesn't have a leg to stand on. Who do they have checking these things, interns?

Some of the parody cases do go the other way, usually involving situations where the mark is disparaged or displayed in an offensive context. But, still...

In their deal with eBay, trademark owners sign a paper attesting to the truth of their allegations of infringement, under penalty of perjury. I would be very surprised if any had ever suffered such penalty.

And this brings us back to the DMCA--now to the take-down provisions, earlier discussions have involved the anti-circumvention provisions. Again, the larger problem: there are certainly people selling a lot of counterfeit stuff on eBay. And eBay doesn't have the expertise to determine whether the items are infringing. How to build in incentives to improve the accurancy of judgments about what to take down? Loser pays? A better dispute resolution mechanism within eBay or for the Net as a whole? (I could file a federal lawsuit but that would require me to get off my lazy butt). Some kind of consequence for false accusations? Signing an agreement threatening penalties of perjury won't do anything, if those penalties are never enforced. Occasional audits of the accuracy of the determinations, by arbitrators, judges, or unbiased attorneys? Changes to the burden of proof?

posted by Solveig Singleton @ 11:15 AM | DMCA, Internet: P2P, Search Engines...

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