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> if I buy a soda with Coke's trademark design on it, I can be reasonably sure I'm buying an actual Coke product.

This always felt like something better enforced via fraud laws than intellectual property to me. Property is the wrong metaphor for trademarks.

Right now you can do bullshit like sell and license trademarks, so I can't actually be confident that a FooBarWidget is made by FooBar. I can have some confidence that FooBar licensed there trademark for it, but they might be doing that as a way of cashing out on their reputation. That shouldn't be legal, that should be fraud.

A better replacement would be special fraud laws against some set of phrases like "Made By <Company>" and "Certified By <Company>", and using those phrase when it's not the case should be very illegal. Maybe there should be a replacement version of trademarks where you can register a distinctive image or made up word as being synonyms with "Made By <Company>", but that shouldn't be sellable, licensable, or anything else, it should be a simple synonym. While <Company> should be able to sue for damages if they can show them, the real enforcement should come from law enforcement because the entities actually being lied to and defrauded are the customers, not <Company>.

I think you're essentially describing Trademark by another name. In the case of Coke there is a distinct styling and branding they use (red cursive lettering being a big component) as part of the brand they use to represent their company name. There are bound to be a whole bunch of edge cases here and so creating a registry process for trademarks to remove any danger from being an accidental look-alike actually ends up protecting small businesses.

Those rights being saleable and licensable honestly just strikes me as common sense because CocaCola might want to empower regional bottling plants to produce their product without putting those bottling plant subsidiaries in the awkward position where they refuse to operate because at any moment CocaCola could step in and essentially seize their entire business since, contractually, there is no method to allow CocaCola to lease out the rights to make such styled bottles removing the protection from bottling plants.

Lastly, CocaCola as a brand definitely has a large value to the company - so if that brand is not saleable how are you going to quantify that value and allow a transferrence of the value of it between different shareholders, holding companies, or company owners/executives.

I also think you're oversimplifying damages - CocaCola could suffer a reputation loss due to CocoCola including arsenic in their product and causing public confusion. I think these portions of the law are pretty complicated - yes - but they're that way because it's a complicated subject.

I’ve never understood why trademarks even get bunched in with intellectual property. Trademarks are a much simpler, easily-defensible concept. When you’re selling something you can’t lie about fundamental facts about the thing you’re selling.

Because "intellectual property" is not the basis of any law, but rather a post-hoc bundling of several disparate legal concepts (some reasonable and some not) in an attempt to cement all them as manifestly necessary.

Because trademarks literally are intellectual property. They're words and designs and patterns that were designed by someone else but only laws can exclude people from using. Nothing necessarily dishonest about putting a swoosh designed by an employee of some other corporation on your bag to make it sell more, and nothing necessarily honest about putting words written by someone whose writing is more marketable than yours in a book they won't see any return on.

Trademarks are radically different, they are an anti-fraud mechanism. If someone is trying to pass off a good as being produced by someone else, then it's fraud.

That's what they are supposed to be. But you end up with Apple challenging a company's trademark, where the company has a recipe app with a pear fruit for a logo.

https://www.macrumors.com/2020/08/08/legal-action-against-co...

Just because a law is being abused does it invalidate that law? Apple should absolutely get a bunch of fines for pursuing this enforcement if it is doing so in bad faith - or Prepear should be forced to alter it's image if it's found to be unfairly exploiting Apple's brand image.

Also this case was resolved in a pretty reasonable manner[1] which actually does seem to increase the visual distinctiveness between the two logos and, from what I can tell, that logo change was the sole result of the settlement. Apple's logo is, IMO, three main things, an apple, a bite, and a leaf - and each of those is quite distinctively placed within the logo. Prepear was pretty precisely copying the style of the leaf.

1. https://www.creativebloq.com/news/apple-prepear-logo-resolut...

Is there any remotely common legal construct for which a dubious case has never been brought?

That was sort of my point. That it's not as simple as saying it's just anti fraud.

I’m suggesting that it’s silly to use frivolous cases are evidence of that. Under that rationale you could say that almost every law is not as simple as what it was meant to do.

If I get mad at my neighbor and falsely accuse him of stealing my car, that is not evidence that laws prohibiting theft are “about more than just stealing things”. The law means what it means regardless of others untested and wacky claims about it.

I'll hazard a guess that most trademark cases are like this. People straight up infringing would likely be out of your jurisdiction. Meaning that most cases probably aren't about intentional fraud. Similar to patent cases.

> software patents are ludicrous and IMO hard to intellectually honestly defend.

I'm not that opposed to software patents per-se, but I believe all patents (and copyright) should be much more time-limited. With software, a year or two would be a more reasonable (for me) time limit, and maybe 10 years for copyright.

In principle I'd agree with paying taxes for Intellectual Property, but there are problems:

- Copyright is "automatic" whenever you fix a work to a medium. Should it be made manual, like patents? Or should copyright be exempt from taxes? What about Open Source?

- Profitability for any given patent varies wildly depending on the company that owns it. So you'd end up with big corporations having patents because their scale (and profits) justifies owning patents, and small companies having no IP. Same thing for trademarks.

Those are good questions to iron out. I think as a first approximation you could let the IP owner set their value, and assess taxes based on that. However, that would mean the owner couldn't sue for another larger amount if their rights are violated.

Say you make a movie and claim that it's worth $10,000,000 for tax purposes. Well, you don't get to sue for $100,000,000 if someone pirates it, because you've already declared that it's not worth that much.

I'm not persuaded by the "small companies have no IP" argument. Apple owns an enormous campus. My company doesn't. Is it fair that Apple gets to lay claim to a larger part of available real estate just because they can afford it? Well, yeah. I believe so, anyway.

"Apple owns an enormous campus. My company doesn't. Is it fair that Apple gets to lay claim to a larger part of available real estate just because they can afford it? Well, yeah. I believe so, anyway."

The difference being that Apple cannot arbitrarily claim to own your real estate.

If you create a work that is worth a great deal, but cannot claim it to have that value because you cannot afford to pay the taxes (yet), a large organization can safely appropriate that work while only paying the smaller amount of damages.

Hm; one question: Could they then claim that it is their work, put a large value on it, and put you out of business?

>I think as a first approximation you could let the IP owner set their value, and assess taxes based on that. However, that would mean the owner couldn't sue for another larger amount if their rights are violated.

You can make this even more elegant by making it a Harberger tax: https://ristret.com/s/ftmbkg/harberger_taxation_has_elegant

Did Cory Doctorow's explanation address valuing intellectual property via Harberger taxes?

It didn't. The short version is that we don't currently have a wealth tax, with only a few specific kinds of things being taxable. I offered that maybe we could add IP to that list of things, and he said that this was the main gist of Piketty's plan and it had met with huge resistance, and that if we're going down that route we should probably start with stocks and bonds, etc.

I'd like to see a copyright that was free for a reasonable amount of time, say 30 years then a fee starts at $10,000 on year+1 and doubles every year after.

Because a tax on IP is a tax on someone thoughts. What right do you or anyone else have to take a cut of someone's mind?

> Because a tax on IP is a tax on someone thoughts

No, like any other property tax, its a user fee for the government service of excluding others from whatever exclusive rights are granted under law for the class of property at issue.

IP doesn't limit or license thought, and a tax on IP doesn't tax thought.

If you want the government to protect against other people making certain applications of similar thoughts to the ones you’ve had, then you want IP protection, and that protection is what a tax on IP applies to.

IP, whether enforced by the government or by private contract, is not a user fee. It's an incentive. To quote the Constitution, IP exists "[T]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings"

How else does such a person learn to discover or create without his thoughts? Taxing IP is taxing the discoveries and the works of a person. Ergo taxing IP is taxing one's thoughts.

> IP, whether enforced by the government or by private contract, is not a user fee.

“private contracts” aren't an enforcement mechanism, they are a basis for government enforcement.

That aside, no, IP (and property generally) isn't a user fee, its the privilege of excluding others from some conduct relating to the subject of the property right.

A tax on property is a user fee on the service of providing and enforcing that privilege.

> Taxing IP is taxing the discoveries and the works of a person

False. "IP" is the right to exclude other people from using such work.

It is absolutely not a tax on thoughts. It is a tax on a specifix ability to assert legal control over other people's thoughts.

That's what the filing fees are for. In addition, it's possible to have intellectual property without requiring government influence on someone's thoughts. Case in point, trade secrets.

> That's what the filing fees are for.

What is?

> In addition, it's possible to have intellectual property without requiring government influence on someone's thoughts. Case in point, trade secrets.

Nobody is proposing that keeping stuff in your head is going to be illegal or taxed. What would be taxed is puting stuff out in the world and then telling people what they are allowed to do with it. That is only possible by using threats of force or the implied threats of force embodied bybour legal system.

> In addition, it's possible to have intellectual property without requiring government influence on someone's thoughts. Case in point, trade secrets.

Also, all other actual IP.

No, it is a tax on a government granted monopoly on concepts that the grantee may or may not have come up with.

Not all IP requires government enforcement.

I'm having a hard time thinking of any form of IP that doesn't require government enforcement. Can you give an example?

Trade secrets.

That's not IP, by definition.

That was the approach prior to the invention of intellectual property. It has problems.

There are very stringent differences between IP and "someone's thoughts".

What right does that person have to ask the government to defend their thoughts, which are provably thinkable by others, too?

If people had thought of it before, they would have filed first or proven they invented it first. In addition, people already pay filing fees for their patents, trademarks, and copyrights. Why should they have to pay more protection money to defend it?

That would be one of the differences between "someone's thoughts" and IP.