Why is copyright law so clearly broken and so riddled with well-known problems, but trademark law is just fine?
It’s well-established that there are problems with copyright law. In addition to the term length being perpetually extended, there are significant gaps between people’s expectations of the law and the actual details of the law. In general, copyright law is not at all suited to a world where everyone has a design studio and publication/distribution network in their pockets. It seems like everyone knows it: there are hundreds, if not thousands, of books, articles, YouTube videos, blog posts, think pieces, and academic papers on this issue. Court cases from California to New York have addressed some of the challenges, many of them explicitly noting the impact of technology on copyright law. Congress has been trying to update the law for several years with the CASE Act, which remains controversial after being passed by the House.
Why isn’t trademark law broken? Why is all of this controversy around copyright, and copyright alone?
Trademark law is certain distinct from copyright, but if the reasons for copyright’s problems are broad, sweeping transformations in society, how has trademark law remained untroubled?
I. Trademark’s Supreme Court Updates
Trademark law is just as affected by changes in society, but it’s been easier to adapt. In the last 10 years, trademark law has seen significant changes. The USPTO has a great deal of control over the trademark application process, and how to fit trademark law into modern society. Additionally, the Supreme Court has made multiple rulings that interpret the main statute of trademark law, the Lanham Act. Trademark law now allows for disparaging and obscene marks. The Supreme Court has made fewer significant rulings on copyright in the last 20 years, though <a href="http://<!– wp:paragraph –> <p>Trademark law is just as affected by changes in society, but it’s been easier to adapt. In the last 10 years, trademark law has seen significant changes. The USPTO has a great deal of control over the trademark application process, and how to fit trademark law into modern society. Additionally, the Supreme Court has made multiple rulings that interpret the main statute of trademark law, the Lanham Act. Trademark law now allows for <a href="https://en.wikipedia.org/wiki/Matal_v._Tam">disparaging </a>and <a href="https://en.wikipedia.org/wiki/Iancu_v._Brunetti">obscene </a>marks. The Supreme Court has made fewer significant rulings on copyright in the last 20 years, though <a href="https://en.wikipedia.org/wiki/Star_Athletica,_LLC_v._Varsity_Brands,_Inc.">they haven’t ignored it completely</a>. The Library of Congress also has less authority (and, I’m just going to guess: a lot less budget) when it comes to the details of copyright registration and maintenance. (Although they are in the process of updating their search functionality! I saw a demonstration of that last month, while the Trademark Electronic Search System is… well, it’s been in need of a major design and function overhaul for over 10 years now.)</p> they haven’t ignored it completely. The Library of Congress also has less authority (and, I’m just going to guess: a lot less budget) when it comes to the details of copyright registration and maintenance. (Although they are in the process of updating their search functionality! I saw a demonstration of that last month, while the Trademark Electronic Search System is… well, it’s been in need of a major design and function overhaul for over 10 years now.)
II. Trademark’s Non-Obvious Trouble
The kinds of problems we see in copyright law are harder to recognize in trademark law. The most common problems with copyright law surface when Twitch streamers or YouTube video producers publish content that runs into (or may run into) an infringement claim. The problem is that many people in society feel that these infringement claims conflict with their basic intuitions about the broad concepts copyright should codify. But trademark law has had these problems, too. But trademark law doesn’t force Twitch streamers to sing while playing a video game, and there isn’t a takedown provision for YouTube videos on the basis of trademark infringement. So fewer people are exposed to the trouble caused by trademark law.
III. Technological Advances and Trademarks
I wrote about just such a trademark law case last year: a small coffee shop “Cat and Cloud” wanted to include the word “cat” in their name and sell store merchandise, and the maker of construction and earth-moving machinery, CATTERPILLAR, filed a notice of opposition to the trademark. There are a few causes for this result, but one of the most intuitively distressing things about it is that it goes beyond the function of trademark law. Trademark law is meant to prevent consumer confusion (among a few other things), and it is obvious at a mere glance that no one is going to confuse the “Cat and Cloud” coffee shop with the machinery manufacturer “CATTERPILLAR.” For non-attorneys looking at this case, that seems like that should be the end of it—just like when non-attorneys look at a copyright infringement claim that feels like it should definitely be fair use or something like that, and that just should be the end of it.
One effect of our society’s transformation has on trademark law is the ability of consumers to do research quickly, easily, and effectively. For copyright law, the ubiquity of cell phones has turned everyone* into an entire multi-media production company. For trademark law, the ubiquity of cell phones has given all* consumers the ability to do much more sophisticated research than was previously possible, including the ability to do that research while standing right in front of two product on a store shelf. That access to information significantly changes the way we think about the potential for confusion.
IV. Conclusion: Trademark Law Isn’t Immune to Societal Shifts
Trademark law is definitely affected by the changes in society, and especially by the possibilities opened up by internet technology and mobile devices. It’s harder for most people to see because it doesn’t affect entertainment on the surface the way that copyright concerns change the entertainment experience. Also, the Supreme Court has been more willing to take cases dealing with trademark law and that has helped mitigate some of the gaps between the law and the expectations and intuitions of society.
*there is a point worth mentioning: not everyone in America has a cell phone. They are very affordable for many people, but they are not free, and many Americans cannot afford one. They also don’t always work. Although they are sufficiently distributed to impact society, policies should not be made based on the assumption that literally every single person always has a working cell phone.
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