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Trademark Forum / A Professional Organization Naked Licensing its Service Marks
« on: 11-23-11 at 12:01 pm »
Greetings All,
Apologies for the length, but I'm still thinking through this and hope it is at least interesting to people in the field.
I am a member of a professional organization that I believe is naked licensing its service marks. My naïve opinion is that despite voluminous "training", the actual quality of service delivered varies so much by practitioner that the service marks do not really identify a service of uniform quality, and therefore should be deemed abandoned. I'm in a phase of research and documentation and plan to have voluminous resources to back up an argument if it gets to the point of legal action.
I'm hoping you guys might have some case references or other thoughts that could clarify the direction I should take during this preliminary research and documentation (or let me know if this seems like a non-starter).
The organization in question is the Feldenkrais Guild of North America, which owns the service marks Feldenkrais, Feldenkrais Method, Functional Integration (FI) and Awareness Through Movement (ATM).
These terms (FI and ATM) essentially describe an approach to teaching people how to develop better movement habits. The training period requires a significant personal investment (160 days over 4 years and ~$20k). But despite the training, skill level varies considerably within each graduating class, between graduating classes and among graduated and certified teachers. This variation in knowledge, skill, experience and ultimately effectiveness is much discussed within the Feldenkrais community. As often as it is discussed, no major changes have been made to the training method for decades.
I believe this creates a confusing situation for consumers. FI and ATM are often marketed to already vulnerable populations (the elderly, children with motor deficits, people with chronic pain, people who've suffered neurological damage). While the approach can have considerable benefit, the results expected vary widely depending on the skill level of the teacher.
It seems that the court cases I'm able to find do not deal with situations quite like this (marks for highly skilled services administered by independent professionals, as opposed to trademarks for retail outlets and consumer goods). Does this make a difference? Are there similar situations out there?
The Guild requires members sign something every year saying they agree to adhere to standards of practice, and there are some continuing education requirements, but actual effectiveness in teaching is never assessed beyond a couple hours observation at the end of the training (wherein there is considerable variation and no one fails). It's hard for me to imagine that this satisfies the obligation of quality control, particularly when variations in quality are a known issue and nothing is done about it other than hand-wringing.
The more I think about it, the more strange it is to me that a non-prescriptive educational approach that relies heavily on creativity and personal skill and whose results vary considerably from one practitioner to the next is allowed to be protected by a service mark. But it has been protected for the last 25 years.
Does anyone have any thoughts?
Thank you all!
Apologies for the length, but I'm still thinking through this and hope it is at least interesting to people in the field.
I am a member of a professional organization that I believe is naked licensing its service marks. My naïve opinion is that despite voluminous "training", the actual quality of service delivered varies so much by practitioner that the service marks do not really identify a service of uniform quality, and therefore should be deemed abandoned. I'm in a phase of research and documentation and plan to have voluminous resources to back up an argument if it gets to the point of legal action.
I'm hoping you guys might have some case references or other thoughts that could clarify the direction I should take during this preliminary research and documentation (or let me know if this seems like a non-starter).
The organization in question is the Feldenkrais Guild of North America, which owns the service marks Feldenkrais, Feldenkrais Method, Functional Integration (FI) and Awareness Through Movement (ATM).
These terms (FI and ATM) essentially describe an approach to teaching people how to develop better movement habits. The training period requires a significant personal investment (160 days over 4 years and ~$20k). But despite the training, skill level varies considerably within each graduating class, between graduating classes and among graduated and certified teachers. This variation in knowledge, skill, experience and ultimately effectiveness is much discussed within the Feldenkrais community. As often as it is discussed, no major changes have been made to the training method for decades.
I believe this creates a confusing situation for consumers. FI and ATM are often marketed to already vulnerable populations (the elderly, children with motor deficits, people with chronic pain, people who've suffered neurological damage). While the approach can have considerable benefit, the results expected vary widely depending on the skill level of the teacher.
It seems that the court cases I'm able to find do not deal with situations quite like this (marks for highly skilled services administered by independent professionals, as opposed to trademarks for retail outlets and consumer goods). Does this make a difference? Are there similar situations out there?
The Guild requires members sign something every year saying they agree to adhere to standards of practice, and there are some continuing education requirements, but actual effectiveness in teaching is never assessed beyond a couple hours observation at the end of the training (wherein there is considerable variation and no one fails). It's hard for me to imagine that this satisfies the obligation of quality control, particularly when variations in quality are a known issue and nothing is done about it other than hand-wringing.
The more I think about it, the more strange it is to me that a non-prescriptive educational approach that relies heavily on creativity and personal skill and whose results vary considerably from one practitioner to the next is allowed to be protected by a service mark. But it has been protected for the last 25 years.
Does anyone have any thoughts?
Thank you all!
