Today's episode is the Fake Intellectual Property panel from the Fake Symposium. It was recorded on September 23, 2022.
- Brian Frye, University of Kentucky Rosenberg College of Law
- Rebecca Giblin, Melbourne Law School
- Scott Hemphill, NYU School of Law and Engelberg Center on Innovation Law & Policy
- Stephen Lee, Chief Intellectual Property Counsel, Target Corporation
- Jason Schultz, NYU School of Law and Engelberg Center on Innovation Law & Policy (moderator)
Announcer 0:01
Welcome to Engelberg Center Live!, a collection of audio from events held by the Engelberg Center on Innovation Law and Policy at NYU Law. Today's episode is the fake intellectual property panel from the fake symposium. It was recorded on September 23 2022.
Jason Schultz 0:21
So I'm Jason Schultz, I'm a clinical professor here and part of being a board senator. And I'm very excited about this panel. Because for those of us who are obsessed in or fixated in any way on what is called intellectual property, the idea of what is real about it or fake about it is something I think is ever present. In the sense of, there are lots of assertions about what is real and what isn't. And then there's the realities that we try to look at in terms of not only what people think they own, but also what they think they can do to stop other people from doing things with what they think they own. So with that, we're going to have, I'm going to start off the panel and let people introduce themselves. And I'm going to start off by asking a sort of general question or provocation. And then we're going to have people go in order of just giving about five minutes or so response to that, and then we'll talk a little bit ourselves. And then we'll involve all of you, hopefully after that. So the provocation that I told the panel in advance is telling me something big about intellectual property, and then tell me something real about intellectual property. And so with that, we'll start with Stephen,
Stephen Lee 1:39
where he started my stopwatch because I'm gonna hold five. I'm Steven Lee, I'm Chief IP counsel at Target. I've been there last week was my 19th anniversary, and I think your anniversary. Prior to that I was at two different law firms for four years. So I've been doing this for a little while. Five years and probably the most interesting in terms of real and fake. That's why they care enough to eliminate it ever since I've sat through this conference. It's a very different type of legal conference that I haven't seen in a while. But I'm going to start first with the real side, I hope you know what target is. But just in case, we have, we're a discount retailer, in every state in the United States, were in all 50 states, we finally got into Vermont, because we have a false small format store there. And so it's not anti big box anymore. So we made that. So we're in all 50 states. But last five years again, out assuming you're a target shopper, which you don't have to be, we have been launching own brands, private label brands, for the last five, six years kind of hand over fist, we've launched about 50 of those own brands. And to give you a little context, this is not your seasonal holiday Halloween brand that my team takes care of that as well. An own brand for target probably is about 300 million to a couple billion dollars in revenue. So think about it. last five years, we've been launching businesses, million dollars at a time of time, some multibillion dollar programs. This is an example of some of the brands that we have launched these last couple of years, there's actually two more slides I got to put in. I'm not bragging or anything, but we've been doing a lot of filing, right, that amounts to a lot of different filings at the USPTO. So for the last three years, we've been either number one in the United States of domestic companies filing trademark applications in the USPTO and probably top 10 worldwide because we protect our brands worldwide as well. Let me tell you a story about a real and a fake because that was the prompt for us. Right. So when we were looking at launching a sportswear line, and we were considering a brand like most companies do, hundreds of people involved 1000s of names that were screening, and one of them was all go, we thought oh that's pretty we wanted an all go mark it kind of was cool to edit a name to it. You know how marketing people aren't. So we started searching that and we ran into a another mark called all go be right on there. It was published for opposition meaning was soon to be registered. And it would certainly have blocked us it was exactly in class 25, which is the clothing class and had a laundry list of items just like we would have had. And so we did our standard investigation. This was about October that we started looking into this all goby and this is the actual trademark specimen at the PTO. We did the investigation we looked into it turns out, we couldn't find the company it was a Chinese company. The address didn't lead anywhere. The telephone number didn't go anywhere. The email address, what were we we hired a private investigator on the ground in China to investigate and the best we could do was got some telephone number that listed some filing house which we contacted, they never heard of this registration. Why were we contacting them because this was a US based application that we were going to buy, right if we can't clear over it when we purchased the rights. This company would have gotten rich, right beyond measure to get out of our way. But instead we had to move on. We didn't have time couldn't find anybody to pay off to buy their rights. And we moved on to another mark which is now all in motion you shop at Target. Turns out we stumbled onto something that other people had started realizing and reading about this was a fake trademark, a fraudulent trademark app. There was no company. If you could really zoom in on the box, do any kind of forensics on it. It's photoshopped on top of the box, they grab a box, they put a mark on top of it, they may offer that as a specimen, they may offer an Amazon web marketplace kind of ad, and they file not intend to use but you space that claiming they are using this brand on every item listed in their single class trademark application. We knew we were onto a problem. And these are just some statistics that I'll just flip through for you. This is the growth rate of Chinese applications, these type of Chinese applications. Since the year about 2014, there's been a 20 700% increase in filings coming out of China, just between I think the year it says between 2019 2021 to 222%. Increase I thought, in 2020, we hit high watermark, but we did 2021 176,000 of these applications are flooding the register, cluttering the register. And the bottom line is I think, if not all, a vast majority of them are not real. There is no product there is not a product line associated with them. These are fake marks that are out there on the register. And what do they do they block the target? Well, we're a big company, we can handle it. But they block everyday inventors, right? This is a company that is
seeking a trademark and they see this Chinese registration. They don't know what they're looking at. And their lawyer says you gotta move on, right buying something else, all of that is either gone, or they have to start over. It's a terrible problem that we're seeing, in fact, 2020 to 2021, the growth of applications like coming out of COVID. Right, domestically in the United States applications, which you would think would start picking up 25%. Foreign about 21%. And foreign also includes Hong Kong, so not sure if that's really China as well. But look at the Chinese number 365%. Wow, they're innovative. They're entrepreneurial. Well, at least that's what they want you to think. What does this mean for you and me? Well, if you know anything, and this is why this has garnered more attention of late because the US patent trademark office is realizing the pendency of a trademark application is inordinately long, right? So you file your trademark application, it would typically be two or three months before you got to an examiner, you're staring at about 10 to 12 months now, before the file even gets to an examiner why? Nearly 500 800,000 applications in the pipeline. And a vast majority of them they're getting jammed because of all the backlog of these Chinese applications single class userbase applications coming out of China. On top of that these Chinese applications red line is Chinese applications. Blue Line is us applications a lot more effective at getting into registration. They figured out the system, a file and you've seen some of these marks that have made no sense fandom letters or numbers and claim to be trademark right a source identifier at least 10 times more successful than traditional us. Don't get Office Action. Here's an example right got photography so easy. Right click on Google. This is Uber love. A trademark registered a patent trademark office. You can see there's bags everywhere. All the Super Bowls. Use that as a specimen. Alibaba, Amazon Marketplace and you got a specimen ready made use based solely based on fraud. Here's another one this is a camera it was a march
Amazon looks really good. Problem is it's actually ran off of it inside by proposer brand and claimed to be selling
other brands on products when they rebrand their their items. So these are traditional items, toys, hard goods, kitchen items etc. and clothing that is targeted. Here's the clothing I don't expect you to read it. This is showing you the mass filers 2020 The numbers 20. Top 5000 USPTO are all for applicants to have a US Attorney no back and encourage the product. This is a filing. This is US government. PTO 1020 The number of applications the top US United States. Okay, let me zoom into the top 20 You're not going to use it you should know if you're in a trademark and he just got missed got reprimanded by the PTO for basketball. One day in September, filed in the trademark application every seven minutes or hours straight in a span of a week on application every seven days a week, every hour of every day. As part of the PTO, I'm just good at what I do. further down the list, some names that you would recognize number 32 would be Greenberg try a firm right? Their application count was 1500 90. Next US firm Barnes and Thornburg at 38 544. Jonathan Morton 20 21,000 applications and he has some yellow, they're relevant. Since 2019, here's some hockey sticks. I'm from Minnesota right 1090 Look at these practices that just started booming all of a sudden, in trademark. The non IP attorneys for the most part, filing trademark application, it is just massively grown. Last thing, this is gonna sound like a bar at 2020 18 different clients walk into Jonathan Morton's office at different clients walk in and ask him individually fire for Letterman. These are the applications these 18 clients walked into his office and asked them to file that day. Oh, but surprise, surprise, all of them have the same identical listing of goods on their application. And these are their specimen. 18 different clients on the same day, identical goods, all of them weird. Registration, right. That's the problem we're talking about. Is it just a target problem? Certainly not. But currently if you know trademark laws we have about this year opposition's and cancellations that we're in the process of filing. I mean, we filed them. So we have 60, ongoing active audit short, is it a pain? Absolutely. What happens with them, they default, they don't care. Basically, you're asking what the reason is for that. I could go on and on and want to keep it the time, but they're at a very base level. And this has all been substantiated their regional governments in China are paying about 1000 to $1,500. On registration that you secure. So think about $1,000 to 1500 per when the average income, middle high income China's 1800 a month. They're making a killing, but this stuff, and it's cluttering. It's crippling our system to make any go incredibly slow. And I can tell you all the other reasons why I think they
Anonymous Audience Member 12:06
do. All right, thanks, dude.
Jason Schultz 12:12
Yeah, we'll talk more about this. I'm just a little sad that I didn't get to register IP speedy. That was my favorite one. I missed that chance thing. All right. So now we're gonna switch to Scott.
Scott Hemphill 12:26
Hi, everyone. My name is Scott Hemphill. I'm a faculty member here at NYU, co director of the engelberg center, it's a pleasure to get to see you all and be at an in person conference and be on the panel. It's a great set of colleagues. So I want to talk a little bit about the Coca Cola bottle. So in a conference about what's real and what's fake, something that's often been described by the company itself as the real thing seemed like kind of an apt place to start, as will be familiar to us, as consumers and to some of us is IP practitioners and scholars, the Coca Cola bottle is famous, paradigmatic. It's the example that we go to when we teach. When Supreme Court justices talk about parodic Matic trade dress, that curvy bottle, you know, it's stuck in our head, Warhol used it repeatedly. It was part of I guess, a sort of three legged stool has been for a long time that the Coca Cola Company relies on, you could say, the bottle, the name itself, the secret formula, if in fact, it is still secret, which is probably subject to its own real versus fake hour in itself. I'm in work with Jake Gerson friend and colleague at Harvard, we've done a little bit of work trying to kind of recover the early history of the Coca Cola bottle back in the early days since we recently celebrated a century of life with this bottle. We're kind of curious about the early days how it became this paradigmatic vessel for you know, investing, filling with efforts of marketing and consumer Association, because the consumer association between the bottle itself and its source is sort of central to, to its predictability. And what we found, honestly, to our surprise, was as strong and unanswerable as it seems today, and perhaps is today, the origins are actually kind of murky, and kind of fragile, and, honestly, to follow the prompt a bit fake. And so, you know, I'm not going to try to play off the whole story here, but fakeness I think arose in two different senses. First, the company, the Coca Cola Company, got a set of design a series of design patents, not just one design Pack. But three design patents covering the bottle over time. The first of which covered the prototype rather than the production bottle. And so depending on how narrow or broad you think design patents are, and I think we think they're narrower and back then they thought they were narrow too, they probably didn't cover the production bottle. Now given narrowness, maybe you could have gotten a fresh design patent on the production bottle. But they didn't do that they actually waited four or five years to patent something extremely similar to the production bottle, leaving them in this awkward position of perhaps not being able to prevent a copyist who decided to use had they done the exact design in the bottle from from doing so they might not have been able to block exact copies. They made their life worse. Moreover, by suing another soda company that do you actually mind going down to the next one,
Anonymous Audience Member 15:56
I'm
Scott Hemphill 15:58
suing the whistle company, which also had a curvy bottle, not identical, and took it to trial, and lost at trial, in an opinion that some folks here will know that basically said, if you had a patent at all, on your curvy bottle, a design patent, whatever it is, that is protecting is not the Corvinus itself in light of prior art. If you go down one more, there are a lot of curvy bottles in the prior art. And so if you have a patent at all, it is really narrow. Now before this ruling happened. Second chair at trial, we went to the transcript secretary at trial for the Coca Cola Company says, Well, Your Honor, on your view that this patent is extremely narrow, that would mean we couldn't even prevent copies of the production bottle. So they understood at the time, this potential implication of the narrowness of their bottle the later bottle the later patent, of course, could not have taken from the prior art, the production bottle right there belated patenting four or five years later could not have taken out of the prior art. The ability of copyists to to copy if they wanted to. So fake in the sense that it probably didn't cover the production model. Fake in the further sense the nevertheless you have a great deal of bluster and confidence. Right? The company collects all its settlements against rivals in this three volume tome grandly titled opinions orders, injunctions and decrees relating to unfair competition and infringement of trademark. They put on the spine, a famous quote from Justice Holmes in the in a trademark case that Coca Cola Company had won in I want to say 1919 or early 1920s. But all of this fakery does lead someplace real to pick up the other piece of the product. Because design patents are just kind of the first step right in a sort of quest for global domination. Ultimately, what you really want what the main event is, is trade dress protection. Now back in the day, unfair competition laws, what we were using, right, our modern glass or trade dress is closely related to the early unfair competition. Then as now you needed secondary meaning that is you needed that consumer association between the vessel and source that we understand to be so central today and in trade dress. So there's a sense here of kind of faking it till you make it right. They faked it till they made it they they pressed vigorously these design patent claims against other other companies, not just the whistle company, but some that were really just engaging in probably copycat work. But then over time, they in fact, did invest it with this consumer association with this secondary meaning that made them a success from the standpoint of unfair competition, and of course, later trade dress. So that's the sense in which it was fake, but it became something real. Thanks. All right.
Jason Schultz 19:18
Next up, we have Brian Brian.
Brian Frye 19:21
Hi, I'm Brian Frye, the Dogecoin Professor of Law and grifting at the University of Kentucky College of Law. And I start with a rhyme as I enter your mind, what has been will be again, what has been done will be done again, the original is something imaginary. There's nothing new under the sun. There's a total inversion of the relationship between the original and talking. Or the difference between original and copy vanishes altogether. Instead of a difference between original and copy there appears a difference between old and new. We could even See if the copy is more original than the original, or the copy is closer to the original than the original. But might also say that originals preserve themselves two copies. But suppose copying is what makes us human. What then? More than that, what if copying rather than being an aberration, or mistake where crime is a fundamental condition, or requirement for anything, human or not to exist at all? Writing is a dance that involves imitation, inspiration and originality. But all things considered writerly disapproval of plagiarism has remained remarkably consistent over the centuries, really, even over millennia. In academia, the morality of plagiarism is one of the few principles everyone converges on. Tilting at the plagiarism windmill seems a worthy quest. We all need something to do before the night comes. If academics were more concerned about spreading ideas and rewarding authors, plagiarism would not be the moral panic that it is today. But of course, academia is not simply about efficiently producing knowledge as a public good, but about properly crediting the producers. Drawing from these sources as if draining water from springs and fitting them to my own purposes. I find my command of writing made more fluent and easy, and trusting in such authors I set about to compose new teachings. Thus, since I saw that such beginnings on their part were laid out for my planned undertaking, I set out to progress further by taking them taking from them. Let us not mince words, the marvelous is always beautiful. Anything marvelous is beautiful. In fact, only the marvelous is beautiful. I have only made up a bunch of other men's flowers pretending my own, only the string that ties them together, providing only my own. This is what constitutes their melancholy, Incomparable Beauty. Do not all the bold descriptions we have given a mountain to the definition of prayer, what art has been granted a dream more political, and more real at the same time, only the most high minded persons in the most perfect and mysterious moments of their lives should be allowed to enter its ambience. If this is plagiarism, we'd need more plagiarism. Gosh, I wish I could do it all over. Fantastic,
Jason Schultz 22:27
right. And then finally, Rebecca.
Rebecca Giblin 22:30
I always loved speaking with Brian. Such a delight. And I just want to go on record as saying I was supposed to be the fake panelist on this. And then somebody added me to the real program. So I became the fake fake panelist, which is about as meta as I like it to be, but also exactly what I would expect from from this group. And I just want to acknowledge as well, that I am drawing on work that I prepared on the lands of the Wurundjeri people of the Kulin nations in a Nam, you know, as Melbourne where sovereignty was never ceded. I'm going to talk about fake ideas about why we grant copyrights, because they're really dangerous. And that's because they lead directly to laws that harm creators, and also disappear knowledge and culture. So copyrights, which protect expression, last far longer than patents, for example, which protect ideas. And the justification is that copyright is not just about incentivizing those necessary investments and getting the works produced and then available ongoing. If it did have that purely economic motivation, then it wouldn't justify terms longer than about 25 years, for reasons I've written about elsewhere, but will not bore you with here. Patents, which are seen as more limited to economic rationales do have much shorter terms for that reason. But then when it comes to copyright, there's this additional motivation to recognize and reward creators. And that's what's used to justify things like copyright terms that far exceed the necessary amount to to achieve those incentives. Now, some might argue, well, that doesn't really happen in the US, because we've got this constitutional framing that you don't know about as an Australian. But I do. And people like Dan Ginsburg, have really persuasively demonstrated that those sort of natural suspiciously continental natural rights rationales have very strongly influenced both lawmakers and courts in the development of copyright here as well. And in fact, every country and it's happened in the other direction to every country is some mix of of economic and naturalist motivations. But certainly, I think we can all agree that those whose claims there's moral claims in favor or creators are used all the time by those lobbying to extend copyright rights. But this idea that copyright is about incentive. Xander Woods is back in Stafford beer tells us that the purpose of the system is what it does. What does the copyright system do? What's real here? All right. So what we see is that with a few sort of small exceptions, we have in common law countries, grants of upfront lump sum awards, that are usually fully alien, or almost entirely alien, a book that can be taken from creators before anybody knows what they were, with no obligation to pay them fairly, and with no obligation for those rights holders to continue exploiting those words. The consequence of this, we have massive problems with creators getting paid, like nearly all of the value of copyrights gets siphoned off at other points of the value chain, the value of creative labor goes to almost everybody except the creative labor. And we have the loss of enormous amounts of knowledge and culture that orphaned because the rights far outlast the rights holders, commercial interest. So, I mean, if copyright really was about incentivizing, production and access, and rewarding creators, boy, is it doing a terrible job. But what if that's just a convenient mythology? Then brilliant, he did drop offs gave one answer the turn of the century about what copyrights really about, and I'm going to read straight from what he said financiers copyright is a third distinct view of government. It rests on the view that copyright must serve the financier of copyright works. by guaranteeing rights of exploitation in whichever markets the financier chooses to upgrade. If new technologies like the internet came along to threaten existing investments, or make new forms of exploitation possible, then the financier is entitled to new rights, that allow him or her to manage the contingencies of the technology. Copyright becomes the servant of the financier, rather than the author, or the public welfare. So I was thinking about this last night, it popped into my mind when I was trying to decide what I wanted to talk about today, since I had to create a real presentation.
And two decades on looking at copyrights, winners and losers and how they've evolved over that time, I think we might take a broader view, that the real purpose is to act as the servant of big business. And there's many ways that we see doing that the tech platforms, including music streaming, by creating licensing, that make it incredibly difficult for new entrants into the market, which is why we're stuck on a small handful of streaming platforms, which it's inviting. In video, we see it with, even with the European DSM is directly of new liability rules for platforms, which nobody but YouTube and afford to comply with, meaning we just have YouTube. And what I was thinking is that well, actually, maybe, maybe we were a little visitor, and that copyright was always the servant of big business. It's just we didn't notice it so clearly, because it was. There's finances of copyright. This would explain things like this bizarre situation you have in this country, where the big radio has managed to defeat every one of the dozens of bills that have ever tried to make creators get paid for the AirPlay of songs on radio. You are, by the way, in an exclusive club with Iraq, Rwanda and North Korea on that one. And it would also help explain things like why the termination rights that was the first to apply automatically after 25 years after transfer window first propose I've read the transcripts around the how that particular legislative sausage got made. And the lobbyists there were very upfront about what they were trying to achieve there. And they successfully managed to get those altered to the point that they are virtually unused. So I'm going to leave it with that. But I do want to say I do think that our current ways of conceptualizing copyright as being sure they're about incentives. They're about rewarding creators. Camouflage what's really going on.
Jason Schultz 29:42
Right, thank you. And I just want to give a quick shout out that Rebecca and Cory Doctorow are going to be doing a fun time book party tonight at 7pm. So if you want to hear more about from her inquiry about in from the new book, it's happening just across the street.
Rebecca Giblin 29:58
I shouldn't say absolutely can't say you can bring drinks in, like if you went to the birthday beforehand.
Jason Schultz 30:05
Exactly.
Rebecca Giblin 30:08
And if you've not ever heard, Cory
Jason Schultz 30:13
so when I showed that slide, yeah, so I have, I have only one latent prewriting contribution to make here. But I was sort of inspired to talk a little bit about actually a clinic project that my students and I did. So some of you may know this, that But Michael Weinberg here, not only being the awesome Executive Director of our Center, but also is the president of the open source hardware Association. And open source hardware is a big, giant, interesting community. But just recently, we had a project with them, because in a very strange and this sort of starts with Stephens story here a little bit, but maybe even ties into to the rest. They'd run across 32, strange trademark applications that had been filed on components and various parts of electronics that were often very much used in open source hardware. And so you can sort of do the trademark analysis of all this, which we did, and, you know, that's the attorney client privilege part. But basically, you know, trying to trademark the name of a component has its challenges. But what was also more interesting to me at the time, kind of from this fake IP point of view, was that the company that was trying to do it was this it was M XP, right? That's it. Yeah, this Berlin based startup that had received like almost a billion dollars in funding from VCs, to and its business model, but it was getting on this idea was to buy Amazon resellers. So this company, the startup in Berlin, who had been given all this money to by Amazon resellers, when I assume sort of doing analytics on which resellers or which sort of, you know, affiliates were doing the best business on Amazon, was suddenly filing a bunch of trademark applications. And that sort of puzzled me. Right. And so we did some poking around and talking to some people. And one of the things that I thought was sort of interesting about it that came up, I realized that Amazon actually offers an IP accelerator product, which I think it's kind of a the speedy is the IP speedy made me think that this too, right? And essentially takes a cut, referring you to vetted IP attorneys to help you get IP. And one of these things that I'm like, also, you know, okay, that's fine, and all but how does this all fit into the big picture? And we started looking into Oh, right, because there you have a brand registry at Amazon. And if you register with a brand registry, you can get takedowns faster. And if your business is Amazon resellers who might need to take down competitors quickly, you might be interested in what trademark applications you could file for them on behalf of them that might help you get on the brand registry. And that you know, and sort of influence on some level, various marketplaces that are essentially run by corporations, right completely internally with their own rules and their own sub markets. So anyway, so I just wanted to share this, because I do think that there's a lot here, I don't know, understand, or I can't explain all of it. But it does seem to me that there is quite a bit going on both within the traditional government institutions, but also within these platforms. And these marketplaces, where a lot of gaming is going on, and it's not as clear what the impact and effects are. But basically, the end result is that an XP at some point, for various reasons, just let the marks go to. So this also kind of goes back to some of the points of like, what are they in it for, which
Unknown Speaker 33:45
I think are sort of interesting.
Jason Schultz 33:47
But with that, I want to I want to turn back to the panel here and just kind of, you know, open it up for conversation with each other, but also to, you know, pose the question, which you know, I think is at least worth asking, which is, should we care about fake IP? Or, you know, something? I mean, what should be done about it, if anything, and can we actually do anything about it? I mean, there's this part of me that is wondering, like, you know, what is to be done? If anything here, so I'm just going to put that out there and see if anyone wants to jump in on on the question.
Scott Hemphill 34:18
Yes, I'll start as we are, for this particular story that I was advancing about the Coca Cola bottle, I think it's kind of mixed. There's a sense in which we should care and then a sense in which caring about the fake part might be kind of missing the point at some level. So, you know, when we got started working on this, I found it extremely Golic that they had what to our eye looks like quite possibly a fake assertion of design patents, that is an assertion of one patent that was Probably not infringed, and another that was probably invalid, or in light of the prior art or in any event didn't read back on the on the prior art, this was way back on the production bottle. This was galling for reasons connected to something that Rebecca was talking about how temporary protection is different patent protection is different from the more permanent, very long lived copyright protection and definite protection of trademark and trade dress. And so using that short lived that fake IP to kind of lever up permanent, unfair competition, protection, permanent trade dress protection really kind of bothered me, when I was when I was first thinking about this. I learned to live a little bit with the fakeness of the design patents. So because to me, the bigger issue, in retrospect is, well, the idea that we could render permanent using design patents, trade dress indefinitely that like yes, these particular design patents may or may not have actually read on the on the production bottle ultimately. But in this broader set of circumstances where the initial IP let's all agree is legitimate. Let's agree that somebody got a design patent before a secondary meaning developed, and then they use that to lever up design patent protection, that doesn't depend on the fakeness. Just to be clear, right? That we could render this temporary into permanence, something that I take to be common ground among practitioners, and markers in the audience. McKenna has written about this, just thinking about this, I find this relatively outrageous now. It works for design patents doesn't work for utility patents, this was actually another moment of fragility for the Coca Cola company back in the 20s, and 30s. Because at the time, that they were in a position to make this leap, some of the contemporaneous opinions shredded wheat as an example, singer, maybe at an earlier time, were advancing a kind of quid pro quo. Once you've had your patent expired, it goes into public domain, and you can't lever up into permanence. And that idea apply not only for utility patents, but also for design patents, one of the patents in Shredded Wheat, because there's a design patent. Put, it just kind of gave way over time, you know, we sort of lost this thread in favor of a thread based on functionality, which successfully denies permanent protection, for utility for things covered by utility patents, folks who think about the traffix case, this would be an example. But But design patents went a different way. And so for me now, that's kind of, in some way, the big story. And so the fakeness feels like a almost a distraction against that outrage, I think, kind of outrageous. But standard practice point, just to be clear, it is it is, I think, common ground these days under US doctrine. If you've got a design patent and you want secondary meaning, go get the design patent as a way to shelter yourself, and they fake it till you make it sort of way until you achieve secondary meaning. Hopefully, you can do that before the design patent expires. And then you're and then you're set. And this is a gambit that I think is is quite troubling.
Rebecca Giblin 38:25
So I think this should take us about what copyrights about which are particularly insofar as they result in creators being an ever reducing share of the rewards of their work are hugely dangerous, and we do need to care about them. What we're really seeing is we're seeing these checkpoint markets being created, right, where we've got audiences at one end creators, the other, and then sort of predatory corporations squatting at the neck, where they use the ability to mediate access between the two, in order to shake down often both sides, but because of the way the consumer welfare and have worked with antitrust, they're mostly shaking down the supply. So that's on the creative end, we see this like increasingly everywhere. Music streaming, Music Publishing, recording, right? The big record labels control over 70% of the global recorded music market, right? They use the power from those copyrights, but they last so long, even though those labels are not essential anymore, in order to get your music produced and available, the way that they used to be that they control that much into depth about how to shape the future of the industry. When we criticize Spotify and we criticize streaming music, this doesn't work for others. A lot of people forget that it's designed that way because that's how when wages. But we see these trends in the book market, Amazon's control over physical books, ebooks, audiobooks, incredibly, because they are constantly arranging the rules to extract more and more of the share. And so yesterday what happened? Maybe probably the Twitch announcement, which was acquired by Amazon a little ways that and the rationale for that was to say, this will be fantastic. Because this behemoth Amazon, one of the things that it really benefits from is drastically reduced bandwidth costs. Bandwidth is possible on Twitch. And so yeah, this is going to be wonderful for creators. But of course, what actually panned out and we said this in real time yesterday, is exactly what always happens. So they actually came out saying the quiet part out loud be unilaterally said, Okay, we're changing the terms on which we pay the most successful streamers on our website, you're not going to get 70% Share anymore, you're gonna get 50% share. And the way this was paraphrased by Sam Buddha was, the way they explained it is that Amazon is charging Amazon so much money to run the business by Amazon, but it has no choice. But to take more money from streamers. That was legit, the explanations sorry, are bad, because it's so expensive, we can't pay you so much anymore, and causing amazing proofs from you. If you're interested that is, that kind of ShakeDown is exactly what happens whenever you have the conditions that put so much power into these, these concentrated operations. And the reason that they're able to achieve that and many many that comes to copyright is because you're awarded in this way, this sort of lump lump sum upfront, almost entirely amiable, allows them to take everything I could, obviously, if your kid is being shaken down at the school gate by bullies for their lunch money, they take the kids $5, every day your kid comes home from work to fix that problem. I didn't have $10. Right. That's what we keep doing well, we keep expanding cover in ways that allow it. And the danger is we go much further down the spot. The kind of people that can afford to like professionally devote themselves to commission, the most commercial ones exclusively for the most privileged ones. That has a huge impact on the kinds of stories we get to hear and the people who want to see.
Jason Schultz 42:33
When we take one more comment, and then we'll go to
Brian Frye 42:38
the bees wonder the flowers here in the man. But after they make me dissolve, even so with the pieces borrowed from others, we must make them our own truth and reason are common to everyone. And no more belongs to the man who first spoke them to them to the man who says him later, even receives an idea from me received instruction himself without lessening mine. And he likes us to be very
Jason Schultz 43:07
easy. All right. So folks have questions. I will go ahead. Oh, why don't you introduce yourself?
Anonymous Audience Member 43:16
I have a question. For Professor Frye. That's more of a comment. Professor Frye everything in your talk was plagiarized. I recognize every word from something else that I read elsewhere, every sentence from something else I've read. Elsewhere, how do you justify stealing other people's words? How do you live with yourself
Brian Frye 43:48
actually feel pretty good about it. Well at night, you know, I really got tired writing this, you know, using my Ctrl C and Ctrl V fingers. There's a lot of work that went into it. And I borrow this stuff because I love it. And I want to make it mine and plagiarizing really is the truest form of love. want it so badly that you want to take it and make it so I feel really great about this actually. I want everyone to start plagiarizing more we need to start teaching our students how to plagiarize.
Jason Schultz 44:34
there other comments questions?
Yeah, there's sometimes trolls in the audience. I'm sorry about that. Well, I'll make one additional comment, which is I actually in clinical work we actually often do talk about Ctrl C Ctrl. V. Because you know, it's this thing where last Goal, there's this emphasis on not doing that which I think is misleading for the practice of law. Absolutely. So I mean, you have to reformulate it in the context of your client. But why reinvent the wheel is a definite central piece of what we did.
Rebecca Giblin 45:13
Absolutely. There's such a disconnect, I think, between what we tell our students to do. And then in our own practice, we're putting together a grant application, we like, like, I think we do a lot more of that industry. Have you maybe have been like super annoying and technical? Would you like it or your friends to send you this and then you just like, shamelessly dumb to reinvent the wheel. I think we need to acknowledge more of that. And I think the idea of students to plagiarize a well, like and what we really objecting to is how badly they do it. In a lot of cases. Various divine, I think, is a really interesting question, and one we should think about a little bit.
Brian Frye 45:56
There's so much that they could bring their legal scholarship to because so many of us walking, all we do is write the same paper over and over again, anyway. So I mean, you know, let's hash it out.
Rebecca Giblin 46:09
Right and spend the whole summer writing a paper for this, but every single word plagiarize, which I think is right. minutes last night in my Airbnb doing intermediateness idea I've had before. This other idea I had before I'm pulling up in a bunch of documents, and I wasn't such a purist as he is. Development that way. But in the course of doing that, you'll have this new idea when I remembered what got me really excited because of the new stuff. This new direction?
Jason Schultz 47:02
Yeah. Can you turn on the mic if it's possible?
Unknown Speaker 47:08
Steven, do you think trademark examiners should should and can look more closely at submitted specimens?
Stephen Lee 47:17
Yeah, we had an extensive discussion, both on Capitol Hill director, Commissioner about what I think targets ideas would be right. I mean, the example we give them is if Target has an issue of gift card products. We don't expect each cashier identified. Right? That's putting it the wrong place. I mean, every cashier I'm not sure if this is legit or not. We do think there's a role for anytime target as an issue. We come in three ways, right people processes and technology got to train the need the examiners to examine correctly, give them the tools to look at this. And I think part of it is they've got such a diverse workforce. They used to be centralized reporting out of their homes all over there's not a lot of review. There's no one to go to when they when they literally have a question. And an aside is not answering your question. But a side issue of this is all this fakery what the impact it's having it's going to have an impact at the PTO right there's self funding. They're hiring up like crazy to staff examiner's but do you see any of the fraudulent applications they will not file a good teams and pay their fees, they will not renew? So you're staffing up enormously. You have all these examiner's and when it dries up, if and when it dries up, you funded it and you have all these people sitting around and not doing anything. So it's going to cripple the system in that way as well. But truly we say people processes, right, there's got to be a better way for these pre examination give you eight or nine telltale signs of a fraudulent application, pull them before they even get to examination, ask the right questions, make them respond because if you issue even a preliminary Office Action, they will not respond. They'll go away. And the PTO will have their fees. They'll get their payment, but they'll just abandoned because they'll move on to their next target or whatever else they're going to do. People processes and technology that technology get better. It's not right click and you get you can find it. There's much more sophisticated forensic tools that you can identify fraudulent application. It's not that hard. I can do it. And yet it's skating through they're getting through in enormous numbers. They're they're not getting rejected. So all three it really needs to be three prong it's not legislative, it's really just the will to do with the resources to do it as well.
Jason Schultz 49:21
We're gonna take one more question the back
Unknown Speaker 49:27
thanks for this great panel. I am a bit of the oddball in so much as a modern art historian that stumbled into intellectual property and specifically among other things, the Coca Cola bottle so I love this presentation. And it seems to me that you're fake it till you make it model is true not only of the design, patent turn, and one of the very first US trademarks for a container in the Coca Cola bottle, but it's true of almost all of Coca Cola, Coca Cola was trademarked, they're all deeply flawed until they become the most recognizable trademarks in the world. So I think the history that you're laying out you're hinting at is utterly accurate. What I've done in my own research, what surprised me as a foil, though, is another model in this case, the French model in which we which is the trademark model goes back even further to 1857 and has long established before Coca Cola is dealing with any of these. And in the French model, there's no problem with patent with with with trademarking, forms, colors, shapes, containers, all of these things are debated, but mostly ultimately granted. And what I also like you find a pourraient in the fake it till you make it, you can patent trade, you can, you can patent the design until you get secondary meaning and get a trademark for all eternity, the French have weren't successful in developing an alternate model. And I'm wondering if you've done any comparative research on the US and Coca Cola and how things went completely off the rails there, versus other trademark systems, which have managed a little bit more stability when the French model that that 1857 model got junked in the 1960s, it was no longer effective. But for a long time, that model was an alternative alternative to the US model. And I'm wondering if you've engaged in any comparatives? Because yes, I agree with you, the US model failed, but it also and now dominates, but it wasn't the only model at the time.
Scott Hemphill 51:37
That's terrific. I'd love to talk more offline. The short answer is no, we've done no comparative work, the longer answer is a little bit
Jason Schultz 51:47
vacant man.
Scott Hemphill 51:50
To the extent that, you know, in in Europe, there's been some litigation around a revision of the bottle. So maintaining the shape, the shape that you can see, it's small on the sides of the coke bottle, probably the Diet Coke, also, the CANS rather, where it's the silhouette or a modification of the silhouette, but without the ridges or ripples, depending on who you ask. And could you claim that as a trade dress shape and Europe was hostile to that? And so we've explored that a bit in part to look for us analogies. So kind of not not very powerful, comparative approach. I admit, we do spend a little bit of time on the name to the extent that Coca Cola itself has a kind of deceptive misdescription thing going, right because, by the by the time that that was getting litigated in the US, that they they taken cocaine out of the product and so coca wasn't true. Colin that was only present in trace amounts, they were caught in a funny vise in the US because the FDA came after them on Pure Food and Drug grounds for not correctly describing their product. They settled that but it helped reveal the vulnerability that they had within HK, pe okay, they wanted to prevent from marketing under that name and the Kayo ke cope said, Well, you guys have unclean hands with your deceptive misdescription and so the the homes quotation, which I'm going to slightly botch? Well know that Coca Cola is a name well known to the community as a source designator, this was their big victory was the secondary meaning had attached and hence Trant notwithstanding the kind of deceptive misdescription bubbling below the surface. So we spend a little bit of time on that in the in the chapter, but I mean, it's a it's a very fascinating, rich history that we only capture part of. Thanks, Scott.
Jason Schultz 53:56
All right. Well, I think we'll for purposes of staying on time, we're going to end there. Please join me in thanking all the panelists real and fake.
Announcer 54:09
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