Tuesday, January 10, 2006

Limits of copyrightability, side note

Apple has sued and apparently won a preliminary injunction against a German company Liquid Air Lab for the name "spod" for its podcasting service. If this decision holds, apparently every product or service name one latter and one capitalization change away from "iPod" could be successfully threatened by Apple, especially if they are somehow related to mobile listening of music. That's over 400 names for the price of one, including the word "apod" for "footless", Earth Picture of the Day, APOD, etc. In particular, it is a painfully large share of all pronounciable four letter names.

This relates to my previous posts on copyrights in the sense that overly wide interpretations of trademarked names pollute the namespace, and soon it may be impossible to name a product without fear of having to rename it. Of course, for big products such as new car models a proper proximity search in trademark databases is not a big overhead, but for small companies and open source projects it is.

Also, the state earns quite a bit from trademark fees. One would assume that some of that money would be funneled into setting up a free web site that searches similar trademarks and gives a legally binding decision if it based on predefined rules can deduce that a proposed name violates no trademark. Although nowadays one can trademark colors (such as Fazer's blue in the context of sweets), sounds and music (such as the Nokia tune in the context of mobile phones), it would be sufficient to limit to textual trademarks. No trivial thing, but a reasonable research project proposal, methinks.

4 Comments:

Blogger olli said...

Unfortunately you are wrong. First, copyright and trademark are fundamentally different concepts. Second, the similarity of two trademarks is not assessed based on some technical terms, but on what impression human beings get of them. Therefore, it is not possible to develop a computerized system that would give legally binding decisions on the similarity of trademarks, as you suggested. Of course, it would be possible to create better search engines to help people to find similar trademarks, but the final decision is left to humans.

10:01 AM  
Blogger cessu said...

Olli, I know trademarks and copyrights are different concepts. The similarity I pointed out in my post is that trademarks and copyrighted works of N bits of information occupy a place in a 2^N-bit universe. If we grant overly short trademarks and regard very short works as copyrightable, N and consequently 2^N is small, and if we furthermore allow a single work or trademark occupy many surrounding places, we are going to run out of space and consequently accidents are going to happen without intention. Trademarks are a limited natural resource like radio waves or domain names: if the PTO's grant and interpret them liberally, they are going to exhaust.

Many tasks initially regarded as regarding human assessment and impression have been computerized, at least with some success. Many medical diagnoses, for example. Similarity of trademarks doesn't seem particularly hard, as we have many tools already available (algorithms for computing misspelling and pronouncing distances of strings and cathegorizations of existing trademarks, for example). I think it would be an excellent exercise for some AI enthusiast to take a questionnaire with some 100 pairs of names, ask a handful of trademark experts to judge how close they are to violate each other, and then see whether for example a clustering algorithm (fed with corresponding edit and pronouncing distances and other derived values of the name pairs) can separate violating name pairs from those not violating each other.

I only suggested that such a mechanized comparison produce legally binding results when the two names are found to be sufficiently dissimilar. That would be done with a very conservative set of rules. Of course, in that case many pairs of names couldn't be mechanically decided as non-violating even if human experts would regard them as such.

3:22 PM  
Blogger olli said...

I'm not sure if I understand you correctly. Say, HP is a short trademark. It does not however pre-empt longer trademarks even if they include string 'HP' as long as a human is able to distinguish those two. On the other hand, a trademark is protected only within certain classes of goods and/or services. If HP were registered as a trademark for computer equipment it would be legal for another company to call their piquant sauce HP also. Usually, human beings are able to make a distinction between computers and sauces and thus there is no risk of confusing those two. (There are some famous cases in which a trademark, like Kodak, was protected extensively, but those are rare exceptions.)

Two me, a trademark of N bits does not occupy a place only in a 2^N-bit universe, but in an arbitrarily large, multidimensional space - one axis being the nature of the good/service (computer, sauce, ...), another being the territory, etc.

On the other hand, as you said, a mark may occupy more than one place in that space, namely also those places that a human being mixes up with the original place.

I agree that lots of interesting research work could be done in this field. The answer that "only a human being can make the final decision" often refers to the fact that the issue hasn't been studied enough and therefore the decision has to be made heuristically. Therefore much better search engines could be developed if the issues were studied more carefully. On the other hand, not all the aspects of the human nature can be imitated by computers - not in this century anyway. Therefore I still claim that the final decision is left to humans - for the time being...

11:28 AM  
Blogger cessu said...

You're quite right that longer names that incidentally include a shorter trademarked name don't violate the shorter trademark. But people prefer shorter and easily pronounciable names and they give a competitive advantage to their trademark holder. I've seen several open source software projects (they are global but have zero budget) have to rename themselves several times, each time to a longer and less descriptive name. My ultimate fear with trademarks, however, is something equivalent of domain name hoarding.

Olli: "On the other hand, a trademark is protected only within certain classes of goods and/or services. If HP were registered as a trademark for computer equipment it would be legal for another company to call their piquant sauce HP also."

Correct, and actually Eric S. Pearl has filed for a trademark "HP" in the field of "education services, namely, classes and seminars in the fields of physical, emotional, spiritual, dynamic and energetic healing" ;-)

Back to the "iPod" vs. "spod" case: does it form an argument against using names like "OP" or "hB" for something in computing?

Olli: "I agree that lots of interesting research work could be done in this field. The answer that "only a human being can make the final decision" often refers to the fact that the issue hasn't been studied enough and therefore the decision has to be made heuristically."

So that answer doesn't imply computers couldn't make the decision once the issue has been studied. I have a hunch that a very useful result could be obtained, and you agree there's no prior research or apparently no other strong arguments that shows a worthwhile result couldn't be obtained. Here the "result" means codifying perceived similarity of standard character trademarks and their fields, and useful for example in searching, and with some safety factor, also in obtaining very probable (if not legally binding once the law is updated accordingly) non-violation decisions.

12:34 PM  

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