Monday, December 17, 2012

Does downstream liability exist for trademark infringement? On domain names or content? The Victoria Secret incident raises questions

Electronic Frontier Foundation has a piece explaining in detail a recent controversy about a “social” parody website by “Pink Loves Consent”  (link)  of Victoria Secret (link), story here by Alson Dame-Boyle.  

Victoria’s Secret claimed both copyright and trademark infringement.  We’ve covered the controversy over the way DMCA Safe Harbor works before.  But EFF makes the important point that service providers have less expertise in handling trademark complaints, and the law seems to do less to protect them from downstream liability.  In fact, I’m not sure that there is any protection.  No wonder service providers jump and take down sites on trademark complaints quickly.  The risk, however, might seem to be with the domain name registry itself rather than the domain content (although here VS could claim that the content implied trademark infringement.)

The trademark part of this issue needs much more attention.

Tuesday, December 04, 2012

AARP trademark use in Medigap may be a Medicare cost control issue, and present a conflict of interest

Can trademarks affect the health care and even Fiscal Cliff debates (especially with respect to Medicare spending)?

Apparently so, as AARP gets a royalty of almost 5% in Medigap policies sold by its business partner, United Health Care, for the use of its "brand".  Medicare changes could include requiring more deductibles, leading seniors to use Part B less and lower premiums and lower royalties for AARP. 

AARP says it lobbies against privatization of Medicare and Social Security, even though it could benefit from using its trademark in selling private products to seniors.  If premiums for Part B to wealthier seniors are increased even more, it could also benefit from using its trademark on replacement Medicare Advantage policies, which might be cheaper.

The story by Jeffrey Markon in the Washington Post Tuesday December 4 is here

AARP has registered a large number of marks on the USPTO site.  

The best known trademark (brand) in the health insurance world are, of course, the Blue Cross and Blue Shield marks, which are licensed to mutual non-profit companies that meet certain requirements as “plans”. 

Should consumers (and governments) pay for the costs of health care corporate "brand recognition"? Can we afford this now?