Wednesday, May 14, 2008

Ok, there is a whole very mucho long post already half drafted about my recent road trip to Alnwick, Lindisfarne, Hadrian's Wall and the Farne Islands, but in the interim I'm too totally worked up about this Noodlehead.

I spend a small portion of my job (say half an hour every morning) taking items that violate a company's trademarks off of ebay. Many of these are innocent mistakes by people, and I include in the takedown notice that we will not object to the item being re-listed so long as the company's marks are removed from the advertisement.

Roughly 5% of the take down notices wind up with someone e-mailing me about it. Of those, half are people going "I didn't know! I'm so sorry! Please help me!" to which I write back, very nicely and truthfully that as noted in the takedown notice that if they re-list the item without reference to our marks they'll never hear from us again, along with further explanations of trademark law if they're not quite understanding what happened and why.

The other half are abusive to varying degrees. This can range from the rather classic "ebay doesn't understand their own business and you don't understand yours either." (Ah, the perpetual favourite of "no one understands anything but me. But I'm going to use their services anyway.") to one guy so abusive that I actually had to hang up on him after four warnings that if the abuse didn't stop, I was going to terminate the call. Points to the woman who drafted the single most sarcastic response to anything I have ever seen, though. That was good for its sheer entertainment value.

And the constant refrain in the abuse is dual. First, Why are you picking on me? Why aren't you picking on everyone else?

As a matter of fact, we are. We do not discuss your case with other people and we do not discuss their case with you, but what on God's green Earth makes you think that loads of professionals want to sit around and of all the infringing stuff out there, you're the only one they're going to single out? As I always wind up saying to people in take downs, and as directly stated in the article IF YOU DO NOT PROTECT YOUR TRADEMARKS YOU LOSE THEM. This is fundamental to the practice of trademark law. Fun-da-freakin-mental. And you can't adequately protect it with one random enforcement and not all the others. Protection is protection. Commercial use in any form is a massive issue.

Secondly is the other classic, applicable to so many protests of this type, "I don't feel I did anything wrong." This is usually used by people who've been caught absolutely bang to rights in error, and they'd just rather tell you how why, in contrary to years of trademark law and in defiance of the judicial opinions of many learned judges over centuries and indeed will all bow to your deliberately ignorant "feeling" of what is right and wrong, which seems to be primarily informed entirely on whether or not someone is trying to stop you from doing whatever it is.

What this woman did was wrong. Now, granted, there is a wide scope of wrong in the world. Going 31 in a 30 zone is wrong, and so is going 80 in the same zone. The 80 is measurably more wrong. But that doesn't stop the 31 being wrong as well. But there is generally a lesser penalty for the 31, and that's what happened here. When people started making a profit by selling these items on ebay, the BBC stepped in, said "now look, this is wrong and we're just going to have to stop it at source. Terribly sorry." They didn't sue her, they haven't asked her for damages, they've not broken her knitting fingers, they just said "look, this needs to stop." And with having the law on their side, they've got the potential of "if you don't stop, well, then we can make you." Pattern down, should have been end of story on all sides. It isn't as though they even took away the items which originally infringed and she knit in the first place.

But no. She's got to scream that she's being singled out, which of course she is not. And she's got to talk about how her deliberately ignorant (and continued deliberately ignorant) stance doesn't feel wrong to her. Would she feel the same way if other people were making a profit on her work, while simultaneously putting her at risk of losing her work altogether? Heck no. That wouldn't feel good to her. But then again, we've already determined that it isn't about feelings boys and girls.

Every trademark lawyer I know read this article and said "well done BBC." Ditto publishers, who deal with issues like this all the time. But hey, if you want to keep staying ignorant, well then I hope it keeps feeling good because it won't stay that way for long.

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