[Upd-discuss] Re: [A2k] EFF, PK Drop ACTA Suit -- Anyone to Take Up the Case Now?

[Laurent GUERBY]

On Thu, 2009-06-25 at 19:30 -0400, Richard Stallman wrote:
>     AFAIK all "intellectual property" laws share one strong element: they
>     all define property-like rights for non rival goods - ideas and their
>     expressions.
>
> Sorry, that's not right either -- it does not fit trademarks.  They
> are not "goods".  (They are also neither ideas nor expressions.)  It
> also does not fit publicity rights, or geographical appelations
> contr=C3=B4l=C3=A9es such as "Bordeaux" for wine.  (These do not exist in=
 the US
> but do exist in many countries.)

Richard, you're very confused. Did you drink too much Bordeaux? :)

On the trademark side:

- Trademark is a sign (text, drawing or other) that can be used to
distinguish a product or service (CPI L711-1). The owner of the
trademark can sell it to a third party.
- The owner of the trademark control most of its usage by the public
(who can no longer use the sign excepted under specific conditions) and
is in charge of legal actions for this control and creation of trademark
is mostly automatic.
- The owner of a trademark does not offer any legal warranty
to consumer by the use of his trademark on a particular product.

In short, trademark is a propery-like right on a non rival good,
carrying a very small amount of information to the consumer
and very strong rights to the producer.

Now on the Appelation d'Origine Controlee side, "AOC":

- An AOC is published by the state as law, covers a given geographic
area, coherent ground and climate and specific methods of production
with often an historical background and name already known by the
public.
- The state can refuse granting of an AOC and does it quite often
when producers union fail to meet the strict conditions imposed
by law for their creation in the first place.
- If and only if you meet those state controlled conditions you have a
right to put "AOC" on a product, otherwise consumers, state, or members
of the "AOC" can sue you.

In short, the AOC system is a consumer protection law with
very strong warranties to the consumer (including right to sue) and
associated constraints on the producers.

In France, trademark law is defined in the "Code de la propriete
intellectuelle" and AOC is defined in "Code de la consommation"
which fits their intent and usage.

There is only one intersection between the two codes: it's that an AOC
name cannot be a valid trademark (CPI L711-4 d), for example perfume
producer Yves Saint-Laurent application for trademark "Champagne" was
recently rejected by french courts on this ground, and the perfume was
renamed.

On a political level interested citizens can lobby for removal of
trademarks in their current form and creation of something different
based on strong consumer rights which would be much more beneficial for
society, but that's another topic entirely :).

Note: most economists and jurists hate AOC and love trademarks.

Sincerely,

Laurent

PS: I'm not a lawyer, please contact one if you want a more informed
opinion.