Anthony writes:
What are you saying here? Do you think free speech is
promoted by
telling
people "no" when they ask if they can use your trademark, but then
not doing
anything when someone uses it without asking?
I'm trying to say that striking a humane balance between the
requirements of trademark maintenance and the interests of freedom of
speech is something I try to do, pretty much on a daily basis. If you
have experience with trademark lawyers in other contexts, you'll find
that they're generally far more aggressive in policing trademarks than
I am. One of my tasks is to preserve and maintain the value of our
trademarks, but I try to inform that task with as much tolerance and
support for freedom of speech as possible.
As for those who use our trademarks without asking, I try to focus on
the larger-scale, commercial infringers. Mostly this is a function of
allocating resources -- we don't have infinite time and money to
police trademarks, so we try to pick the worst offenders when we send
cease-and-desist letters (with the possible followup of formal legal
action), and this means we necessarily are going to let more minor
infringers slide. It turns out that recognizing and working within
economic constraints is congruent with a more tolerant policy
regarding unlicensed use, which I think is a reasonably felicitous
result. (Often I proceed more informally against infringers, and that
frequently is enough to stop the infringement.)
Is that something they taught you in law school, or
did you learn it
on your
own?
I'm not sure I understand what additional information you are
attempting to elicit with this question. Are you genuinely curious
about law school or about my experience? If so, I'm ready to answer
private inquiries, but the question itself -- taken at face value --
doesn't seem germane to the subject matter of this public mailing list.
I didn't make any points, I asked questions. If
you can think of a
different way to phrase the questions while still obtaining the
answers to
them, please feel free to rephrase them.
Perhaps I'm missing something, but it seems to me that the law-school
versus on-your-own question was designed to be disparaging.
And my third question, which I suppose was the one
considered "disparaging", was somewhat pre-emptive. Mike has a
tendency to
answer questions of this sort with an appeal to his status as a famous
lawyer, and therefore as someone whose statements are (in his mind)
beyond
question by us little people.
Good lord, this is quite a misreading of how I intended to be
interpreted. I was trying to suggest (as I elaborate above) that my
experience as a free-speech lawyer informs my work on our trademark
portfolio. I hardly think "famous" has much to do with it. I don't
think of you as "little people" -- I don't even know what you mean by
that -- but if I thought my statements were "beyond question," then I
wouldn't bother to respond to your messages.
I think you have to work very hard, mentally, to insert into my one
sentence about "a free-speech lawyer" all this stuff like "famous" or
"beyond question" or "little people." Those words may inhabit your
perception of me and my attitude, and I apologize if something I've
said elsewhere has given you the impression that I think that way, but
they're not there in the actual words I used.
I can't pretend to be inexperienced in dealing with either free-speech
or trademark issues, but I don't expect you or anyone to defer to me
simply because I'm purportedly an authority.
So I wanted to clarify in advance which parts
of his statement he thought could be understood (and not just accepted
without question) by those of us who decided not to go to law school.
I hardly ever condition my responses to this list on whether the
person I'm responding to has gone to law school. And, seriously, do
you suppose that after decades online I could possibly every expect
*anything I say in any context* to be "just accepted without
question"? You must think I'm as dumb as I look.
It seems to me to be
self-evident that telling people that they can't use your trademark
and not
policing the use of your trademark are contradictory, and apparently
this
seems self-evident to others on this mailing list as well (hence the
accusations that I'm trying to make a point).
We're policing the use of the trademark. Our efforts on this front
are mostly invisible to most of you, and that is as it should be. And,
as I have pointed out, we necessarily can't police all infringing
uses, so (informed by the desire to be as tolerant as possible of non-
harmful unlicensed uses), we try to go after the worst offenders.
Your reasoning suggests (by analogy) that prosecutors who don't
prosecute every single offense, or policemen who don't arrest everyone
who might have committed offense, are somehow "contradictory" to
upholding the law. But that's not how the legal system works. We all
have legal rights and responsibilities, but, *just as important*, we
can choose where and when we will invoke them. That's not
"contradictory" -- that's at the very least prudence, and, one hopes
in the long run, it may even approach humanity and wisdom.
Yes, there
are also possible negative outcomes, but we're supposed to assume good
faith, aren't we?
The question about law school, plus the stuff about "just accepted
without question" and "little people," did not strike me as informed
by any assumption of good faith. I hope you will find it in your
heart to forgive me if I misread the good-faith assumption intended by
your "little people" comment.
--Mike