Jejune IP Law

Photo by Odalaigh, some rights reserved

I wrote last month about examples of bad IP law – articles in the press that misrepresent and confuse the various distinctions of intellectual property law.  A couple of articles this week have moved my thoughts on, ever so slightly, to the prevelance of IP myths.

Legal Bizzle has posted today on two Comment is free pieces that appeared on The Guardian’s Occupy Cif pages today.  Bizzle’s ire was mainly (and rightly) directed at Jon Witterick’s piece on defaulting on your debts as a viable economic option.  The cigar chomping bear has already expertly (and with some panache) deconstructed a number of Witterick’s claims regarding debt collectors and fractional reserve banking so I will turn my cannon on one of the intellectual property issues raised instead.

One of Witterick’s recommended alternatives to actually paying off your debts is what he calls “Option 3: Copyright and Trademark Procedure” – he obviously hasn’t read my last post, else he’d know it’s “Trade Mark”, but that’s really the least of our worries.  It is based on a dubious assumption that if the debt collection agency cannot use your name without your permission, they cannot write to you and ask for the money back.  Or if they do, you can sue them for infringement and claim a massive amount of damages (£10m per use is suggested – quantum? What quantum?)

This procedure, it is claimed, “offers a greater level of protection” (than Witterick’s others) against those pesky debt collectors who have had the gall to ask you to pay back some money you’ve borrowed.  All that you need to do is “take control of your Uppercase/capitalised name or Strawman in Common Law and International Treaty” – whatever that means.

Apparently, this taking control just requires you to make a “Declaration of Copyright Trademark” whatever that may be.  Fortunately a quick Google search turns up a number of examples (alternatively you can sign up to Witterick’s website and get access to his own suggested wording for free (or £5 if you need it in a hurry)):

Declaration of Copyright Trademark.
I am known by the name: ©In-house: Hotshot, Creditor, Trustee, Secure Party, Author of the Copyright Name Trademark Claim autograph (IN-HOUSE HOTSHOT™) or any derivative thereof HEREBY ATTEST THAT, I am competent and capable of handling my private and commercial affairs in my full capacity as Agent for the name IN-HOUSE HOTSHOT™ and will enforce with prejudice any Copyright Name Trademark Claim infringements. ALL RIGHTS RESERVED

Now I’ve worked in trade mark and copyright law for a few years (well, long enough to know they’re not interchangeable terms anyway) and strangely this expertly drafted piece of prose has never come up in my studies or practice of IP law.

This may be because it is, in technical parlance, absolute bollocks.

While the freemen of wherever are correct to say that copyright and trade mark rights can arise without the need for registration, they cunningly gloss over the key requirements for each set of rights.

Photo by 917press, some rights reserved

Copyright protects “original literary, dramatic, musical or artistic works, sound recordings, films or broadcasts, and the typographical arrangement of published editions” (Copyright, Designs and Patents Act 1988, section 1) – see any mention of names there?  No, me neither.

More importantly, copyright will only apply to a work of “independent creative effort” where “sufficient skill and labour has been expanded in its creation” – and I’m sure mummy and daddy straw man put a lot of thought into choosing baby straw man’s name, but I doubt it can be considered a high level of skill and labour (bad birthing puns excepted).  And if they did, well, surely the copyright is theirs as original authors, no?

In case you were starting to have doubts, the UK IPO handily provides a note on its copyright pages that (perhaps Meltwater notwithstanding) “names and titles do not have sufficient substantiality to be original”.

So there is no way that you (or your parents) can own copyright in your name.  Unless your name is coincidentally the first twenty pages of Harry Potter and the Deathly Hallows (or any other literary work), and even then I think JK Rowling and Bloomsbury’s lawyers might want a quick word.

Photo by caitlinburke, some rights reserved

So what about trade marks?  We read plenty of news stories about how Lady Gaga (UK TM registration number 2509635), Sarah Palin (US TM registration number 4005353) and David Beckham (CTM registration number 1796721) have registered their names, and if a name can be registered as a trade mark, surely it can exist as an unregistered trade mark too and then you could base a claim for infringement on these rights?

Well no.  Unregistered trade marks can only be protected through the common law wrong of passing off.  To succeed in a passing off claim you need to show the mark is yours and then establish the ‘holy trinity’ of reputation, damage and confusion:

  • The mark is yours – well that’s easy, we have our beautifully erudite Declaration of Copyright Trademark which has been published in the local newspaper and pasted onto our Facebook page.
  • You have built up a reputation in the mark – simple, I’ve been using mine for twenty-seven years now and it’s what everyone from my girlfriend to HMRC know me as.  What renown!
  • Damage – well of course – you’re using this name as a way to try and get me to pay back the money I owe – that’s pure economic loss right there I’d say.

So success right?  Well no.  What about confusion?  In order to prove confusion you need to show that there has been a false representation to the public which has led them to believe that the goods and services of the defendant (i.e. the debt collection agency) are those of the claimant (our Mr Strawman©™ etc).

This therefore requires a connection between the trade of our straw man and the business of debt collection.  This seems unlikely, unless while resisting the repayment of his own debts he operates a business that has been pursuing others for repayment of their own.  That’s beyond even Morissettian levels of irony, but doesn’t scan nearly as well, or rhyme with “dontchathink”.

So you cannot rely on unregistered trade mark rights in your name (though they may exist) to stop the wretched debt collector from calling unless you yourself are a debt collector, who has himself  run up a debt, and you can establish that the debt collector pursuing you has confused you (as a consumer), or potentially the original lender (as a purchaser of debt collection services), into believing that they are actually you and not an independent, completely unrelated debt collection agency, despite (presumably) their use of their own trading name which is in no way similar to your own name, and their use of your name as a way of addressing letters to you.

And what are the chances of that?  Better or worse than rain on your wedding day if you are a weather forecaster, or a traffic jam when you, as chief town planner, are already late for a meeting about alleviating traffic congestion?

Anyway, I’ve mentioned before that Taylor Wessing have published a list of what they term “Dangerous Intellectual Property Myths” and I think that today has shown us that we can add another one to the list, possibly just after the damaging reliance on ‘poor man’s copyright’:

“Because copyright and trade mark rights can exist without registration, all I need to do is say my name is eligible for copyright protection and is also a trade mark and it is so”

Sadly in this case it isn’t true, as Shakespeare almost said, that nothing is either eligible or ineligible for extensive IPR protection, but thinking makes it so.