Shattering pyrex To Show A Massive Weakness In Trademark Law
from the turn-up-the-heat-and-it-shatters dept
Trademark at its best is a means to protect the public and consumers. A brand may be associated with a particular product and a particular level of quality. Consumers seeking exactly that product and quality will seek that brand; Trademark laws ensure they’re getting the real thing.
Take Pyrex: it’s heat-resistant glass, what we used in chemistry lab in high school, what you buy if you’re cooking and baking with a lot of heat changes. Except it’s not, as this highly amusing video demonstrates (start watching at about 28:00):
Trademark treats brands as “property,” controlled exclusively by “owners,” who can buy and sell them:
In 1998, Corning divested its consumer products division which subsequently adopted the name World Kitchen, acquiring the rights to the pyrex® trademark. The company introduced clear tempered soda-lime glass kitchenware and bakeware under the pyrex® name. link
According to Wikipedia, Corning’s responsibility extends to this formality:
When trademarked as PYREX® (all UPPER CASE LETTERS plus, in the USA, a trademark notice comprising a capital “R” in a circle) the trademark includes clear, low-thermal-expansion borosilicate glass used for laboratory glassware and kitchenware, plus other kitchenware including opaque tempered high-thermal-expansion soda-lime glass, pyroceram, stoneware, and metal items See. e.g., http://www.amazon.co.uk/s?index=kitchen-uk&field-keywords=pyrex. European trademark usage differs from American and the encircled “R” is not present on European PYREX items.
When trademarked as pyrex® (all lower case letters plus a trademark notice comprising a capital “R” in a circle) the trademark includes clear tempered high-thermal-expansion soda-lime glass kitchenware, plus other non-glass kitchenware, made by World Kitchen. See, e.g., http://www.amazon.com/s/ref=bl_sr_kitchen?node=1055398&field-brandtextbin=Pyrex
I don’t think this passes the “moron in a hurry” test, but it’s not put to the test because Corning isn’t having a dispute with a competitor. Rather, they are misleading consumers, and Trademark law as it currently exists offers no remedy.
Consumer Reports did a video about glass bakeware exploding, but didn’t address the Trademark issue at all:
In his book Against Intellectual Property, Stephan Kinsella argues that Trademark should protect the rights of consumers. He suggests Trademark suits should be brought by consumers against monopolists, not by monopolists against competitors. I have no answers, and like I said I’m not a Trademark abolitionist. I certainly don’t want to increase the reach of Trademark law; I generally don’t think more lawsuits are an answer to anything. But it’s a good story to show that Trademark isn’t as functional as we’d like it to be.
Filed Under: consumer protection, pyrex, trademark
Companies: pyrex
Comments on “Shattering pyrex To Show A Massive Weakness In Trademark Law”
All About Protecting Consumers
This is why I (and most other lab dwellers I know) have switched over to other labware brands like Bomex. That way there’s little confusion over the quality of the glass and a lower chance of having a piece of glass break in the middle of an experiment. You’d be surprised how often a piece of kitchenware can serve as a cheap piece of labware.
/bacon-lance
UFB
Good thing we’re getting all these anti-counterfeiting measures passed to protect us from this kind of thing!
Excellent Insight
Along with the Tom The Dancing Bug Takes On Insanity Of Copyright Extension And Disproportionate Punishment from the awesome dept post, this post has raised interesting insights concerning the wrongness of so-called “intellectual property”.
UFB
What’s the word for an official counterfeit?
Trademarked!
the humor of PYREX and pyrex
The thing about these products is that:
none of the pyrex sold in the us is PYREX anymore (borosilicate). Not since the 70’s. The european version with borosilicate is named “Marinex” and….not made from Pyrex.
Nice, huh.
the humor of PYREX and pyrex
*none is borosilicate for kitchenware anymore.
Seems to me one could make a good argument for not registering or enforcing the second mark under either Lanham 2(d) or 2(e) for being deceptively misdescriptive or a mark in prior use. Why the PTO let it pass I don’t know. Consumers, or at least consumer watch groups, should have standing to go after this sort of misuse.
Did you miss the bacon lance?
Pyrex, Schmyrex. They made a gas torch out of bacon.
Passing off inferior products
This reminds me of the sub-par IMAX theaters that are popping up at all the local multiplexes. They’re not actually up to IMAX standard that the public associates with the brand, yet because the company has given its consent trademark law sees no trouble with duping customers into paying more for something they aren’t getting.
This happened to me
I broiled steak in “pyrex” glassware. It scared me (almost literally) pissless when I took it out of the oven an placed it on a granite counter top, at which point the whole think shattered, sending glass shards in a 360-degree radius.
Luckily, I was not injured, only extremely surprised, and confused, until I googled “pyrex shattered” and found that what I thought was Pyrex was in fact “pyrex”
Sigh. If you look up the trademark, Nina, you’ll see there isn’t one mark for “pyrex” and a second mark for “PYREX.” There trademark is for “PYREX” for glass: http://tess2.uspto.gov/bin/showfield?f=doc&state=4005:uhrkq2.2.8 It is the word itself that is trademarked, no matter whether it’s spelled with uppercase or lowercase letters.
And, please, there is no “moron in a hurry” doctrine in U.S. trademark law. I wish you guys would stop using it. Talk about confusion or initial interest confusion or something that actually exists.
Trademarks identify producers, not products. So the word “PYREX” indicates the company that made it. There is no confusion, as that word is used in trademark law, when someone sees “pyrex” and thinks they’re getting borosilicate glass. Confusion means you think the source is different, not the product. Confusion would be if you saw “pyrex” and thought you were getting something from Corning but really it came from somewhere else.
You’re simply confused about what confusion is. Ha!
Your argument that it’s dangerous when people think they’re getting one kind of glass and not another is not a trademark issue since there’s no confusion about source. So your point that “Trademark law as it currently exists offers no remedy” misses the point entirely. Of course trademark law offers no remedy. This isn’t a trademark issue. There are other laws that protect consumers from dangerous products.
I’m sorry, but this article is just idiotic. Is there any branch of IP law that you can’t completely misconstrue?
Science question
Given that the glassware in the video demonstrations above contained only sand, why did it appear to be boiling as the glass broke and the sand hit the granite?
Science question
Given that the glassware in the video demonstrations above contained only sand, why did it appear to be boiling as the glass broke and the sand hit the granite?
Sounds like you’re wishing that PYREX was a certification mark, which identifies certain characteristics of a good, as opposed to a “regular” trade mark which merely identifies the brand or maker of the good.
Re:
Woosh?
If a company wants to HARM the brand value that they created, so be it. They will see their relavence in the marketplace diminish just as Corning’s PYREX brand is waning. Consumers ultimately decide the fate of companies that choose to release inferior products. A company may fool consumers for a short time but in the long run consumers will abandon the brand.
Re:
Right. I think the moral of the story is: Don’t write articles attempting to point out a “Massive Weakness In Trademark Law” if you don’t even know the first thing about trademark law.
Mike I think you're off base here
Mike, “PYREX” is a very old and generic trademark term for various types of glass products made by Corning.
“Pyrex” lab instruments are indeed borosilicate glass. They are quite fragile but have a superior resistance to thermal shock compared to soda lime glass.
“Pyrex” baking dishes have been made by World Kitchen (a US company and also manufactured in the US, despite what you’ll see in a common chain email) for 15 years, and World Kitchen has claimed that they did NOT change the recipe and that at least some % of the older Corning-made Pyrex baking dishes are also tempered soda lime glass.
Tempered soda lime glass is significantly more resistant to physical shocks– bumps, drops, etc– than borosilicate. It is true that its resistance to thermal shock is inferior, but it’s also been claimed that the gains in physical shock resistance are far greater than the losses in thermal shock resistance.
I have been using tempered soda lime baking dishes for many years, as have hundreds of millions of people, without incident or problem.
The REAL problem is a lack of education, and perhaps a lack of clear and visible product labeling, regarding proper use and hazards associated with glass bakeware. People simply don’t realize that you cannot do things like grab a super heated baking dish with wet oven mitts, or set a super heated dish directly on a really cold or wet granite countertop, or take a dish from the freezer directly into the oven or vice versa.
I often agree with you but in this case I do not think there is a problem with trademark here. Wouldn’t this be like McDonald’s getting blamed because they sold both hamburgers and salads under the “McDonalds” trademark which confused people? Hardly. The problem is lack of consumer knowledge/education and not trademark.
Science question
It was said that the granite counter was wet. So, when the glass broke, the heat of the sand was enough to make the water under it boil.
Re:
A trademark can apply to a product. Pyrex was not the company, Corning, it was one of their product lines. iPods are not the company, Apple is.
Otherwise, what you see as a mistake, I see as the main point of the argument: The premise is that the purpose of trademark law (in part) is to protect customers from potentially inferior products that are presented in a way that confuses the consumer about their origin.
Given this premise, techdirt is saying that it is inconsistent for the law to allow companies to use trademarks in a way that causes consumer confusion.
It is a pretty straightforward if-then statement: If part of the purpose of trademark regulation is to avoid dangerous confusion for consumers, then trademark law should regulate trademark uses by the trademark owner that may cause that same type of confusion.
To this, you might respond, “But it was only ever the purpose of trademark law to regulate the actions of those who do not own the relevant trademark. The confusion is seeks to avoid is the confusion created competitors, not the trademark holder”
Perhaps this is true– I am not familiar with that body of law. However, if this is your counter claim, then again I would say that this is the exact argument of techdirt. The underlying premise is not, “dangerous confusion caused by a competitor is bad”, but instead, “dangerous confusion is bad.”
Therefore, it does not matter if the confusion is caused by a competitor or the trademark owner. Even if trademark law does not currently allow for regulating trademark usage by the owner, in order for it to be logically consistent with its original purpose, it should be concerned with any use of a trademark that could cause dangerous confusion.
on crack
Popular Science had a PR article from World Foods, stating how great it was that they had lowered the quality of the bakeware. It seems that is was really good for making crack cocaine and meth, but now the drug dealers had to go get more expensive labware. (I guess the drug manufacturers never heard of Science and Surplus. Yeah, right!)
I also had a glass explosion a few months prior to reading the article. I put a pyrex saucepan full of water on a burner. Boom! Water and glass everywhere. Luckily, no one was hurt, but flying glass gets in the darnedest places.
Thanks, World Food! You’ve made our lives that much more dangerous!
Mike I think you're off base here
“Nina Paley” is a very old trademark for me. “Mike” is a different brand. The problem is lack of consumer knowledge/education and not reading the byline.
Science question
ah, I missed the “wet” part. It seemed strange that sand would boil like that otherwise, and now I know that it did not. thanks.
Genericization.
With trademark law, you loose the trademark if it becomes a generic term. Klenex has become a generic term for “facial tissue” (nobody says “please pass the facial tissues”). Pyrex became associated with heat resistant silicate glass.
The error isn’t one consumers made, it is one the mark owner made by ignoring the meaning of the brand they created.
Re:
All legally sound argument, but I think the point here is to show how TM’s objective differs from modern real-world expectations.
TM protects indications of source and seeks to prevent confusion of source, affiliation, or sponsorship. But we also know that consumers don’t even need to actually know the source of the good for it to be a valid trademark. Consumers may not know where “Ajax” comes from, but they expect a consistent product and quality whenever they buy that brand.
TM law assumes that a product under the same name from the same source will be the same product. The mark as an indication of source is a proxy for a given quality or a particular consumer expectation. When the quality changes, it’s primarily the mark owner that is harmed, so the owner has the incentive to maintain that quality.
But when a TM is registered for a confusingly similar product that differs in a material way that consumers cannot determine at the point of sale, that’s a “gotcha” point of confusion that TM simply doesn’t prevent.
There’s nothing in TM law itself to prevent Apple from selling a version of the “iPhone” that looks the same but requires a $1000 licensing fee to operate as a phone. But the average consumer would expect every “iPhone” to be materially the same, or at least to advertise its differences.
Re:
“A company may fool consumers for a short time but in the long run consumers will abandon the brand.”
You have too much faith in consumers and underestimate corporate marketing and consumer manipulation. These are the same people who vote for politicians who actively work against their interests and they’ve been voting this way for over a hundred years. Consumers can determine the fate of a company that releases inferior products, but sometimes that fate is to let them go on producing the inferior products.
Mike I think you're off base here
I’ve often had the tendency to read everything on this blog as written by Mike. Perhaps the byline could be larger or more conspicuous. Perhaps the different authors could have individual and consistent avatars.
Mike I think you're off base here
My point is that if passing off soda lime glass as pyrex is somehow the consumers’ fault for not being “knowledgable/educated” enough, then surely the moron in a hurry who addressed his comment to “Mike” is equally to blame.
Personally, I think Techdirt has some responsibility to let readers know who wrote what articles. Likewise I think Corning has some responsibility to sell genuine pyrex under the pyrex brand. Do I think we need more laws to enforce this? No. But the comment I responded to blamed consumers for being sold soda lime glass as pyrex. I found this ironic.
Re:
Here’s the formula for trademark: trademark = mark + goods/services
So the trademark is PYREX for glass, which identifies the source, Corning. If Corning decides to change the formula for their glass, and someone buys something labeled as PYREX thinking they’re getting the old glass formula, that’s not “confusion” in the trademark sense. They are still getting the glass product made by Corning, so they haven’t been confused as to source.
Trademarks are source identifiers. Confusion means confusing the source, not the product.
If Coke changes their formula without telling anyone and I buy a Coke thinking I’m getting the old formula, I’m not confused as that term is used in trademark law since I got the drink made by the Coca-Cola Company.
Re:
I think we’re in agreement here. I don’t think Techdirt is disputing this aspect of TM law, only that it is a weakness and inconsistency with its ostensible purpose.
For my own part, although I agree with TD’s general argument, I wonder if other bodies of law might not be more appropriate to this sort of issue. For example, if General Mills decided to weaken the Cheerios brand by replacing substituting the current package contents with Fruit Loops while leaving the packaging the same, that should be their choice. However, if they wanted to make a Cheerios brand box of Moth Balls, that would be both damaging to their brand and a strong potential risk for confused customers, and should not be allowed, and indeed the FDA might have some jurisdiction over mandating corrective action.
With this Pyrex case, I’m not sure what that other regulating agency or body of law would be, but neither am I sure that Trademark law is the best place for it either. What I do believe is that the inconsistent use of the Pyrex mark is irresponsible.
Of course, the market already offers a natural remedy for this- Pyrex stops being associated with borosilicate glass and starts being associated with shitty glass cookware.
Re:
World Kitchen is using “Pyrex” pursuant to a license from Corning Inc. There is no “second mark”; it is the same mark. The PTO was never involved.
Re:
Absolutely. To me it seems like an issue for the FTC, in the realm of consumer fraud or deceptive practices. There are reasonable consumer expectations about the characteristics of products labeled “Pyrex,” and those expectations have been dangerously violated.
It’s certainly not an issue for TM law, but it does point to an interesting difference between the law and a layman’s experience of the law.
Re:
If Coke changes their formula without telling anyone and I buy a Coke thinking I’m getting the old formula, I’m not confused as that term is used in trademark law since I got the drink made by the Coca-Cola Company.
I bet you would be slightly pissed/confused if you bought a Coke and the contents were actually Sprite (lemon-lime, like the corollary?). But your argument here is just because these are both drinks made by the Coca-Cola Company there shouldn’t be any confusion.
Re:
I’m doing my part to increase that association without people having to suffer flying shards of glass in their kitchens. Eventually the pyrex brand will become disassociated with heat-resistant glass, but consumers are paying a high price for this change. They may be injured, their meals ruined, and they certainly won’t be getting refunds for their broken purchases.
Again, consider if an unlicensed seller were passing off soda lime glass as pyrex. That would become the poster child for stricter Trademark enforcement, and you can bet the “endangering consumers” argument would be front and center.
Mike I think you're off base here
You keep using “Pyrex” as a generic term for heat-resistant glass. You (and many others) may think of it that way, but “Pyrex” is not generic in the legal sense. And this is where the confusion arises.
Trademark law, however, does deal with this problem. If “Pyrex” was found to be a generic term for heat-resistant glass, it would enter the public domain as an unprotectable synonym for heat-resistant glass. Then, if a business were to advertise non-heat-resistant glass as “pyrex”, that misleading use could fall under false advertising. (A note: a mark may be deemed “abandoned” following a radical and substantial change in the underlying product, but it has to be pretty extreme and I don’t think that happened here.)
But your average consumer would not have standing to challenge the “Pyrex” mark as generic. Your post notes this lack of standing and I tend to agree that expanding the ability of consumers to bring trademark-based claims is a good thing.
Mike I think you're off base here
If “Pyrex” was found to be a generic term for heat-resistant glass, it would enter the public domain as an unprotectable synonym for heat-resistant glass.
What kind of legal action would lead to such a finding? Who would sue whom? I assume in this case, consumer advocates would have to sue Corning.
Science question
If you look closely in the video you can see water on the counter before the glassware is placed on it. the water is heated to boiling almost instantly and when the glassware breaks the water is boiling and steaming through the sand.
Clear enough?
Science question
He said they put it on wet granite, and that looks like the puddle boiling through the crack in the glass from the heat of the sand.
Science question
If you noticed in some of the shots, there was a puddle of water inside the marked rectangle. I’m assuming that was to help provide the thermal shock to the glass to make it shatter.
Re:
I find it amusing the semantic lengths you are going through to specify the type of confusion that trademark law covers. Very disingenuous.
A Little Clarification
Under current law, a trademark neither identifies a producer, nor a product. It’s a piece of property that property that the owner can do pretty much as they wish.
The mark owner can:
– License it to any other company or person, including to multiple ones at the same time, which means that trademarks do _not_ identify the producer of a product or service.
– Use it on any product, or multiple products at once, which means that trademarks do _not_ identify the product or service.
– Can sell, give, or license it will, which means that trademarks do _not_ ensure any sort of continuity in time with respect to owner.
– Can change the products at will, or change which products are sold under the trademark at will, which means that trademarks do _not_ ensure any sort of continuity in time with respect to product.
PS: I’m quite upset with trademarks in general. This post was more to show how messed up the system is rather than support it.
Pyrex
Very informative.
We are now looking for a alternative to the Pyrex we now use in our Kitchen.
Now that I know this, I cannot in good conscience or, from a legal standpoint subject my employees to a known safety hazard.
Mike I think you're off base here
A cancellation proceeding before the TTAB (to cancel Corning’s federal registration of “Pyrex”) could result in a finding of genericness. Some sort of “competitve” injury is usually required for standing, so I don’t know if physical danger to consumers would fly for an advocacy group.
Genericness can also be used as a defense to a trademark infringement action. If the defendant succeeds, the plaintiff loses their rights in the mark. But your average consumer is not going to find themselves in that situation.
I am no expert in this area. I’ve glossed over some stuff. This is not legal advice so don’t hang your hat on anything I’ve said.
Re:
I bet you didn’t know that Clueless (original makers of Woosh) was bought out by Moron, who is now manufacturing non-genuine Wooshes!
Re:
I think that she was pointing out that some people (like me!) have long believed that Pyrex meant the stuff that would not break when exposed to rapid heating and cooling, when in fact that is not the case, Pyrex is just a word some company can put on its brand of products, as you are pointing out with much ill grace.
Re:
You have too much faith in politicians, even the “honest” ones become corrupt. So even if you vote for a politician who supports your causes, he/she will side with which ever side of the issue is more lucrative. You can’t get power in government without being re-elected, you can’t get re-elected without campaign funds, you can’t get campaign funds without selling out.
Re:
Huh? It’s not semantic lengths, whatever that means. I’m explaining exactly what trademark covers and what it doesn’t–something that Nina Paley obvious has no idea about. Confusion over what type of glass PYREX uses is not a trademark confusion issue. To suggest otherwise is disingenuous. I take you’re just as clueless as Nina. Am I right?
Re:
And the type of confusion you’re talking about is not the type of confusion that trademark law deals with. It’s not a trademark issue. Nina would know that if she knew even the first thing about trademark law. She’s clueless, and she’s obviously not qualified to write articles trademark law. Give me a break, Nina. Stick to your silly cartoons.
Re:
Actually, I have faith in politicians to be corrupt or incompetent. I’m cynical enough to believe we’re likely screwed either way, and there isn’t really a practical solution that I can see for the issue, but ideally we could put laws in place that restrict corporations from screwing over consumers and taxpayers quite so much. I just don’t have much actual expectation that this will happen, especially seeing how we can’t even get an approved consumer protection agency up and running due to political infighting and partisan politics.
Mike I think you're off base here
I thought you can?t trademark your own name.
OMSI?
The same Oregon Museum of Science and Industry that developed a Pascal compiler around 1980?
I remember using a rival compiler called NBS Pascal about that time. Unfortunately it was buggy and unsupported (though it was fun to hack the source code). The Powers That Be decided that the compiler for ?official? (i.e. course) use would be OMSI. I didn?t like it, because it didn?t compile directly to machine code, but generated assembler source, which then had to be fed through its own custom assembler to generate object code (why did they bother?). So it was a whole lot slower than the NBS compiler. Not to mention we didn?t seem to have source code, so we couldn?t hack it.
This was running on a 16-bit mini with, at its peak, ?MiB of RAM, serving 50 users at once.
Kids these days…
Re:
That’s disingenuous and you know it. Businesses spend MILLIONS upon millions of dollars to build up a brand name. Nike. Samsung. Apple. Levi’s. Every company wants their brand to be synonymous with “high quality”. For you to say “Too bad, that trademark is only ever a label” is bullshit. Branding is huge, mindshare is huge, and while you might be right about the technical legal aspect, that only goes to show that the legal aspect is fucked up. Yeah, you might think you’re getting a Kodak camera, a brand you’ve trusted all your life, but instead you’re just getting some slapped together piece of junk with “Kodak” stamped on it because some shell company bought the name at fire-sale prices when Kodak went Chapter 11. Therefore, as Nina is pointing out, NOT COOL.
OMSI?
> ?MiB of RAM, serving 50 users at once…
Luxury! I used OMSI Pascal with RT-11, sticking to the good old 56KiB of RAM. On the upside, it was all mine; none of this multiuser stuff.
I really liked it, except for that one time I discovered it was trying to use one my device registers as a temporary variable.
Re:
Quit calling me an idiot.
… Well, that’s what you’re doing when you express a lack of faith in consumers and a great deal of faith in the nefarious marketing power of corporations.
There are good reasons why voters vote poorly. It takes effort to be informed, and why bother when you have 1/200,000,000 of a say in who the next President is? Public choice economists call it “rational ignorance.”
Doesn’t apply to a baking dish. I have 100% control over which brand I buy, and I own 100% of the consequences of choosing poorly (or using it improperly.) It’s not rational to remain ignorant in this very different case.
So, like I said: Quit calling me an idiot.
So compete!
All this would take is for a well-heeled competitor to create a new trademarked borosilicate glass and market it as “What Pyrex used to be before they changed it.”
Pyrex = Junk
I did not know all of the back story on Pyrex. I do how ever know that since Corning sold the brand, the stuff in the stores under the Pyrex brand is cheap junk that fits poorly, and is prone to breakage.
crummy pyrex
http://s113.photobucket.com/albums/n226/cbunix23/?action=view¤t=DSC_0067.jpg
Pyrex today is a crummy imitation of the original. The large bowl was in the cabinet with three smaller bowls nested inside. My wife heard a loud sound of glass breaking in the kitchen, opened up the cabinet and found this! That bowl was NEVER in the oven. The ONLY thing it was used for was to make salads. I don’t believe it was ever in the dishwasher, and if it was then only a few times. This is a very new set of bowls. Thanks a lot Corning for selling off a great brand to MORONS!
pyrex alternatives
While this article points out the deception World Kitchen is perpetrating, it will have little effect on the company. What would hurt them is if there is another competitor who makes borosilicate glass products in the US. Those who make junk will only pay the price if people buy from someone else.
I wish this article had mentioned of anyone else makes borosilcate glass products.
Re:
The reason most people think your comments are silly and mock you is because you are so focused on the letter of the law, that you totally miss the intent of the law. Nina made a very reasonable case for how this doesn’t fit with the intent of the law, and you — like a stuck up law student at a 4th tier law school — argues the specifics of what the law says.
This is why you always get stuff wrong on copyright too. You’re so focused on law and order and following the letter of the law, you immediately misconstrue any higher level argument about how the letter of the law fails to meet with the intent of the law.
Another fool using a Mac laptop…
Hmmmm
Crocs Shoes stopped using croslite years ago even though they market their shoes as made from croslite this very day.
The substitute is much cheaper.
Good thing electrons are cheap. 65 ~ 83.547652% of this whole thread could have been obviated by some pretty Venn Diagrams, or um… those other type; but what the hell, it is fun too, seeing peoples’ egos and such expanding and contracting or, shattered logic shards zinging around the joint.
I think this A.C. has it right.
Sorry Mike, but I think this AC has it right. Trademark is supposed to be consumer protection, and I think Trademark’s function in identifying the source of the product helps consumers. Let me explain:
Remember the “New Coke” fiasco in the 1980’s? I don’t. But we’re all familiar with the story: Pepsi is outselling Coke, Coke tries to regain market share by introducing a newer formula that tastes more like Pepsi, huge backlash, Coke reverts to old formula, Coke Classic is back in business.
Imagine if there were no trademark: Pepsi could sell its formula deceptively as Coke and the real Coca-cola Company could claim it had nothing to do with it, and there would be confusion over who’s telling the truth, because Pepsi could legally do something like that. Or imagine the inverse, where Coca-cola sells its formula deceptively as Pepsi to attempt to gain back market share, and Pepsi – though claiming it had nothing to do with it – suffers because people think its popular formula has changed even though Pepsi had nothing to do with it.
With Trademark, Coke can’t market its products as Pepsi and vice versa, so we know the source of the formula changes: Coke changed its formula, and thanks to a massive backlash, changed back.
Now, the Pyrex issue isn’t exactly the same, since changing the chemical composition of glass is not as noticeable as changing the formula for a soft drink (not to mention Coke had advertised their formula change and Pyrex didn’t). However, the substantive interests of the consumer are protected because we now know, thanks to the internet, that this is the doing of Pyrex itself, and not some knock-off brand. It is a self-inflicted wound rather than a counterfeit stabbing. Thanks to trademark, we now know that we should avoid the real thing because the trademarked brand is itself tarnished by cost-cutting measures rather than the result of a knock-off competitor. This could be remedied by taking our money elsewhere (if Pyrex isn’t the only brand sold in your neighborhood).
Trademark may not address the issue of the brand hurting itself rather than counterfeiters hurting the brand, but that’s why we should have competition, amirite?
Re:
The reason most people think your comments are silly and mock you is because you are so focused on the letter of the law, that you totally miss the intent of the law. Nina made a very reasonable case for how this doesn’t fit with the intent of the law, and you — like a stuck up law student at a 4th tier law school — argues the specifics of what the law says.
This is why you always get stuff wrong on copyright too. You’re so focused on law and order and following the letter of the law, you immediately misconstrue any higher level argument about how the letter of the law fails to meet with the intent of the law.
LOL! That’s your response? Can you not even admit that Nina has displayed an abysmal understanding of the law? I know, I know. You’ll defend her to the death, never admitting even the possibility that she got anything wrong.
Let’s play your game, Mike. Explain how PYREX changing the type of glass it uses goes against the intent of trademark law. I’m more than happy to see this debate all the way through until one of admits the other is right. I know you won’t play though. You’ll run away as you always do when called out for your idiocy. I won’t hold my breath waiting for you to answer.
And, seriously dude. Having Nina Paley write articles about trademark law is really fucking weak. At least you know enough about to sound plausible. She just sounds like a complete idiot, and that makes you look like an idiot for letting her post this nonsense on your site. LMAO!
Re:
The difference is that the unlicensed seller is fraudulently damaging the Pyrex? brand in your hypothetical example and in this example, Pyrex? is weakening their own brand through cost-cutting measures. The former is an example of one damaging another and the latter is an example of one damaging itself. When a counterfeiter damages a well-regarded brand through making knock-offs which get confused with the well-regarded brand, the well-regarded brand and its reputation are damaged and that is out of the well-regarded brand’s control. When the well-regarded brand damages itself, it has nobody to blame but itself if its consumers choose a different brand.
In this instance, the consumer is protected because we know that the brand Pyrex? is damaging its own brand and not due to some nefarious third-party looking to make a buck.
Pyrex
And this is why even though trademark doesn’t cover the issue of brands using inferior products without informing the consumer, it doesn’t need to, because the truth will come out eventually thanks to the internet. The brand becomes damaged for reasons unrelated to trademark, but since we know the source thanks to trademark, we now know where not to take our money.
UFB
while we’re on this riff, here’s a blast from the past.
The article refers to a book called “Against Intellectual Property”.
I have never seen it, so I don’t know what points it makes, and I
have no opinion about them. However, since “intellectual property”
is a misguided overgeneralization, it is just as foolish to be
“against it” as to be “for it”.
See http://www.gnu.org/philosophy/not-ipr.html for more explanation.
Re:
Crickets. Of course you won’t actually debate me on this. What a fucking joke.