TigerDirect takes trademark tort totally too far
So Apple is now being sued for trademark infringement by TigerDirect (via Engadget). Cockamamie nonsense, I think. One thing did catch my eye, though:
“Tiger Direct contends that Apple’s use of the name has adversely affected its ranking amongst the Internet’s largest search engines, Google and Yahoo, bumping the company from its usual spot in the first three results.”
That’s a bold and dangerous claim. It doesn’t seem like they’re bothering with showing harm to their business or confusion of their brand within their industry; they just want to own that search term. Now, I don’t know what makes them think that even a tiny percentage of the people searching for “tiger” are looking for them and not this. I doubt they’re looking for the latest OS X release, either. The dangerous part of this idea is that there could possibly be a damages claim resulting from a change in placement in search engine results for a single English word query. That’s really just a step away from being able to sue the OED. Perhaps Tiger Woods could drop his last name and sue the pants off of zoos everywhere.
evan :: Apr.28.2005 :: Notions :: 3 Comments »
Did you read the actual complaint filed by TigerDirect? The news report you linked to suggests that they are, in fact, claiming damages (which means that they can either calculate actual damages, or they are taking a hardline position with an eye to settlement).
I know your main point is probably something like, “TigerDirect shouldn’t be allowed to enjoin Apple for using the same name for a different product, especially when it’s a name like Tiger that referes to so many products all consumers should know better than to assume it’s the one they are looking for.” (I thought of Tiger Schulmann’s first, and the Wizard of Oz second even though that is a lion).
But until you explain to me why trademarks and copyrights and patents aren’t property I’m going to analogize this, and hold Apple to the same standards I would a potential polluter who has recently moved in upstream from where I already was situated.
I haven’t been able to find the actual complaint, but I’d love to see any causal evidence of a drop in business for them as a result Apple’s OS marketing. Maybe that’s not the standard required, but it seems like it should be.
As for your analogy, I think it may fit generally for trademark cases, but wouldn’t you have to show actual harm from that potential polluter? Just because he might pollute doesn’t mean he will, and it seems actual harm would be much harder to prove in a trademark case.
In this particular case, I think it’s madness to be able to base your claim on changing search engine results. The last thing we should be doing with the internet is creating a “results right” where you are entitled to a specific outcome of a query on the entire internet. That would have a tremedous chilling effect on free speech, among other things. The fact that this case specifically involves such results for a single common English noun makes it (hopefully) all the more ridiculous.
OK, disclaimer time: I have no particular knowledge of copyright or trademark law. My slowly developing intuition legal matters suggests that a monetary award would require a showing of actual damages. However, an injunction could probably be obtained by TigerDirect simply showing they have a proprietary right to their name, and it’s place in search engine results. It’s like trespassing in that you don’t get money unless your stuff is damaged, but you’ve got every right to deny people even harmless access to your land.
I recognize that the proprietary interest in their search engine results is problematic. However, I’m not sure that it is a bad place to start. If we continue the property analogy for intellectual creations, there is plenty of room to prevent a chilling effect on free speech, and other such public harms. Even though we start from the presumption that a man’s home is his castle, if his home is between the whole town and the nearest beach, we might recognize an easement on his property that he never actually contracted for. That is, our property system allows for all kinds of impositions on a person’s private property rights when the public good demands it.
I don’t necessarily disagree that TigerDirect has a weak case, but I think the issue is kind of complicated. Presumably you would be more sympathetic of TigerDirect’s case if Apple had chosen to name its new OS TigerDirect rather than simply Tiger. I also imagine you would be more suspicious of Apple if the name in question was more unique than a “single common English noun.” I’m suggesting that maybe the way to go is to first presume that the original name has priority, but that the newcomer has the right to demand a sort of intellectual easement since the original isn’t that creative or unique. Instead of overhauling the enitre IP theoretical framework, it might make sense to actually apply property rules to it as far as the analogy can be taken. I don’t know. I have no idea if anyone is writing about this stuff.
Right now I’m deeply worried about the various Circuits’ interpretations of Holloway Error, and what the standard for rebutting a presumed conflict of interest is when a lawyer wants to act adversley to a client on an unrelated matter.