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Author Topic: Trademarks are Permanent - First Usage - LINSANITY (J. Lin) v. MAGIC (Afghans)  (Read 8648 times)

mojobadshah

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To begin with I can understand how this question is more appropriate for the forum on trademarks, but I kind of feel like you sidestepped a lot of my questions, which I'm not sure is very "fair." 

I don't think Robert is sidestepping your issues.  He is trying to politely tell you that what you are proposing is based on fundamental misconceptions about IP law.

Many of your questions seem to start with "Why can't...  ?"

The general answer is very simple:  that's not the way the legal system works.

Listen, I'm trying to carry out a polite discussion here too.  I don't want to pretend like I know everything, but I don't know how to put these things any other way, but to ask questions.  Moreover, a whole bunch of my questions were totally evaded so I feel like I'm carrying out this discussion on one leg.  I'd like to discuss these "fundamental concepts or misconceptions" here, but it's pointless if certain questions aren't being addressed.  I know how the legal system works.  I, personally, engaged in a legal dispute on this question exactly for 10 years and all I got back from the so-called "Finder of Fact" was some "common sense" legal jargon flat out denying every historical, scientific/linguistic fact I knew to be true to be flat out wrong - and denying me the opportunity to present my complaint to a jury.  This chief justice also happened to be posing as a neutral party only to find out that this "Finder of Fact" was propping up Churches and using "public school funds" to do it.  I can not get into the question I'm raising without relating it to at least 3 legal domains 1.) trademark law 2.) cultural heritage law 3.) copyright law.     
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mojobadshah

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Quote from: mojobadshah on Today at 05:09 pm

To begin with I can understand how this question is more appropriate for the forum on trademarks, but I kind of feel like you sidestepped a lot of my questions, which I'm not sure is very "fair." 

I don't think Robert is sidestepping your issues.  He is trying to politely tell you that what you are proposing is based on fundamental misconceptions about IP law.

Many of your questions seem to start with "Why can't...  ?"

The general answer is very simple:  that's not the way the legal system works. 

They all appear to be legal domains relevant to my question regarding the rightful owner of the mark MAGIC.  If Robert wasn't sidestepping my questions, really I should have gotten a response to all my questions.  And really, Robert was asking for a legal premise that supported and is supposed to have enforced my argument and the UN ICHC should have been all I needed in the end, but I've been doing my best to work within the framework of the law.  So if you guys want to respond to my questions one by one I would greatly appreciate it.  But if you don't it would just appear to me to be more of the same, some sort of averse reaction to a few questions without any logical response, just a complete outright denial without any empirical facts to support the "rule of law."  Since when did rules and laws and the terms which the law sets become a "democratic process" and not motivated by "rules and laws"?  As far as the Courts are concerned I can only see that applying to the jury, but that comes hand in hand with a certain set of "Facts" and "Laws."  To say that "that's not how the law works" in itself sounds kind of evasive, and the Courts that I've been dealing with and a statement like that is almost comparable to someone holding a gun over someones head and saying "that's the way it is."  I don't know about you guys, but that doesn't appear to be very "reasonable" or "rational to me," and I can totally see why wars are waged now when they don't even have to happen.  I doesn't matter who I deal with - interfaith forums, linguistics forums, the legal system, the press.  You guys don't seem to understand that the world has changed and that there's an entirely new part of the world new cultural element here now, and the "law" that your talking about has got some serious flaws and issues.  Straight off the bat I can tell you that while the experts on what language is will tell you that while a word is the "most important human invention" ever, our lawmakers here appear to have determined according to THEIR OWN morality that a word is not an "invention."  Another point: while the experts will tell you that "1 word 'paints' 1000 pictures" our legal system has determined that "1 word does not convey enough creativity to warrant protection."  3rd problem: while your representative of the arts is telling us that a "language is a system" he's also failing to mention that 1 word is a "mechanism."  Really, I'm trying to be polite.  It's just kind of odd that the people I'm communicating with don't appear to understand that Americans are "culturally different" and that every discussion I have with someone that is not Afghan on what is historically identified as Afghan in "providence" ends up evading or cutting the dialogue off halfway into it.  I really don't think it's a good sign.   
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mojobadshah

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Who, among the "Afghans", would have enforcement rights under your theory?  What if one Afghan desires to exclude me from marketing my "magic" "religious" services, but another Afghan licenses exclusive rights to me?  Which Afghan(s) have standing to sue in enforcement of the alleged mark?

Couldn't I ask the exact same question in relation to a trademark owner registered with the USPTO?

You could ask it, but the answer would be simple.  One person, by the name of Jeremy Lin, owns rights in the LINSANITY trademark (at least according to the record in the register), and he alone can bring actions to enforce those rights.  He doesn't need to contend with others who would purport to have equal say in those rights by virtue of common "cultural heritage" or whatever pseudo-legal malarky they might come up with.  Suppose he brings on a business partner and grants the partner rights in the trademark.  The partner's right to license will be governed by the agreement between Lin and partner, or, in the absence of applicable agreement provisions, default laws established by the courts.  Perhaps partner can license to others without Lin's consent, or perhaps he can't, but whatever the case, the legal regime can handle the problem.


On the other hand, between one Afghan and the next sharing common cultural heritage, there are no laws to govern what one can do without the other's consent, and thus even if the trademark were to exist and belong to all Afghans, it would have negligible practical value because any one of them could license it to a third party, and owing to the vast number of persons holding the purported trademark rights, each will have the incentive to undersell the others such that the price of the license goes to zero.  As soon as one of them licenses to a third party, the value of the mark is destroyed for all the rest.  So the regime you envision, where "Afghans" hold trademark rights, makes little practical sense.  A trademark is only worth something if a single person (natural or corporate), or a body of persons bound to each other in well-defined ways, hold the mark.

We are speaking in terms of 1 mark here which has been extremely influential over the course of history.  There are 60 million Afghans to 150 million Irano-Afghans in the world.  On the other hand, there are 7 billion people in the world.  To put it another way.  1 mark MAGIC. 50,000 to 3 million Irano-Afghans in the United States at most vs. 300-400 million non-Irano-Afghan Americans in the United States.  25,000-50,000 registered trademarks with the USPTO that use the wordmark MAGIC.  The USPTO charges a re-occuring annual fee for business owners to keep marks registered, unless I'm not mistaken (and it doesn't look cheap).  So hypothetically if on the low end if every Irano-Afghan charged those 25,000-50,000 trademark registrants a fee at the a fraction of the cost the USPTO charges (lets say typical annual TM fees are $300-400) say $100.  THAT'S $100 in the pocket of every Afghan American every year until the mark MAGIC is no more, and that also saves "consumer's" the hassel of higher costs for trademark "protection."  Do you see any issues with this hypothetical?  Not to mention a lot of commercial establishments generate their funds off of "tourism" for one.  And ultimately if I understand US trademark regime correctly trademark law is not necessarily about the money, rather "reputation."  So even if the Afghans weren't awarded the actually monetary incentive involved here, they would still have plenty to gain off of the "authentic" association between the mark MAGIC and Afghan culture.  Do you see anything wrong with this point?  Nevertheless if the trademark regime is not going to rightfully appropriate the mark MAGIC to the Afghans, why does no one know that MAGIC is historically identified with the Irano-Afghans or Persian culture, not to mention students are being mislead into believing that MAGIC is tied to the Egyptians?       


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mojobadshah

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But wait, you say.  Even if all Afghans cannot jointly own a mark as individuals, they could form themselves into a body politic--a government--and consent to allow their head to administer the mark.  But can a government apply for a U.S. trademark?  At least with regard to official seals, the Federal Circuit answered that question in the negative in In re Houston (Fed. Cir. 2013), per the restriction in section 2(b) of the Lanham Act.

As this blog about the case aptly explains,

Quote
Trademark law, in addition to protecting valuable marks in commerce, is also concerned with protecting the public.  One of these protections is the idea that words and language should not be unnecessarily restricted via trademark registration, hence the doctrines of descriptive and generic terms not being protectable absent special circumstances.  At the same time, the government is the property of the people.  Our government exists to serve the people, not the other way around, a subject of much concern after the Framers’ experience with the English monarchy.  Section 2(b), as written, clearly reflects the notion that government insignia belongs to the public and may not be restricted from the use of the public.  Such a protection shows foresight and wisdom.  It preserves the right of political commentary such as the use of insignia in political cartoons and satires.  It draws a clear line between for-profit commerce and a government that exists at the will and sufferance of its citizens.

This blog opines that, aside from the seals exception in the Houston case, "government entities have just as much right to own trademarks as does any private citizen".

That's nice, but would the Court be willing to test this concept of "protection" of theirs with a jury?  Because that's not what the Constitution states - the 5th Amendment that is.  Why is it that you get to define what "property" is and not me?  Any history book or book on linguistics including dictionaries will trace both the "mark" and "expression" MAGIC back to the Irano-Afghans.  So who decided that those books and the facts contained them are wrong and that US Law Code is right here? 

But wait, you say.  Even if all Afghans cannot jointly own a mark as individuals, they could form themselves into a body politic--a government--and consent to allow their head to administer the mark.

That's what UN policy dictates.  UN ICHC.  Where was the United States in all of this?  I thought the United States was party to International Law Code.  Since, when did the Courts turn into gangs?  I understand police officers have the right to turn a blind eye, but when the Courts become the reason for a disorderly society?

I'm not aware of any U.S. trademarks applied for or assigned to foreign governments, but if you find one, let me know.

Doesn't United States jurisdiction extend beyond United States borders?  Why wouldn't it be the other way around, too?  Not to mention Afghan Americans live in the United States. 
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MYK

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There is nothing in international trademark law, custom, or practice, nor in U.S. trademark law, custom, or practice, that grants the exclusive right to a word to some group based on "cultural heritage".

You don't seem to want to understand that.  There's no point in explaining anything to you if you refuse to listen to the explanation and are simply going to go off on rants about "International Law Code" and the United Nations Cultural Heritage Whatever, neither of which actually exist, certainly not in the form you envision anyway.
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"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

mojobadshah

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There is nothing in international trademark law, custom, or practice, nor in U.S. trademark law, custom, or practice, that grants the exclusive right to a word to some group based on "cultural heritage".

You don't seem to want to understand that.  There's no point in explaining anything to you if you refuse to listen to the explanation and are simply going to go off on rants about "International Law Code" and the United Nations Cultural Heritage Whatever, neither of which actually exist, certainly not in the form you envision anyway.

Not ranting.  Doing my best to be detailed without having to write an entire book.  Above I see you're speaking in terms of "international trademark law."  As far as "International Law Code" I know there is an international law and governing body or Court eg. the Hague.  I've received mixed messages on what purpose intergovernmental policy making bodies such as the United Nations serves exactly.  The way I understand it the "legal instruments" which these international governmental bodies have put forth such as the UN ICHC sets the premise for legal standards that extend beyond the limits of respective national, state, and local legal instruments or law code eg. US Law Code.  It has been adamantly expressed to me by at least one authority on "Human Rights Law" that legal instruments such as the "United Nations Charter on International Human Rights" and the "UN ICHC" is not merely policy that is symbolic and enforceable.  I, personally, on the other hand don't see how when I've applied these legal instruments in my own experience, and am prone to believe that policy like this IS merely "symbolic."  Before I say or inquire into anything else I see how you may consider all of this to be off topic, but if I may... Is the "United Nations Charter on International Human Rights" merely a symbolic "legal instrument," and is the "UN ICHC" different?  Because all the literature I've read on cultural heritage law implies that the UN ICHC is a "legal instrument." Moreover, I'm a native English speaker and as far as UN ICHC Article 2.2 there's only so many ways you can interpret this Article, so can you tell you how you would interpret UN ICHC Article 2.2 <http://www.unesco.org/culture/ich/en/convention> especially when it comes to "expressions" and "language"? Is this one of those circumstances where common law defines the terms again and not the actual experts on language?  And I don't want to kill a dead horse here, but your saying that: "nothing in international trademark law, custom, or practice, nor in U.S. trademark law, custom, or practice, that grants the exclusive right to a word to some group based on 'cultural heritage'."  So as far as "international trademark law" (not in terms of cultural heritage, although I'm not sure how LINSANITY doesn't fall into the category of cultural heritage - leaving ICH Law out of the fold) does this policy apply to Jeremy Lin too (and partners)?  Also are you in acknowledgement that a legal domain such as Cultural Heritage Law or Intangible Cultural Heritage Law (ICH) exists, because I can certainly see how pointless it would be discussing the law in terms of ICH Law if you or every lawyer and lawmaker in the United States is not in agreement that such a "legal theory" exists in the first place.  Because I'm inclined to believe according to certain international legal principles out there eg. WIPO's and the UN's that ICH Law does pertain to trademark law, copyright law, and even patent law - especially when all these legal domains are engaged in the "usage" of what would according to ICH legal terms would, potentially, constitute as someone or some group or others ICH.  The "commercial" use of the mark MAGIC is an example where I would argue that it does.   

 

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Robert K S

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I found at least one mark registered to a foreign nation, No. 79,080,268, a logo used to identify French food and French wine, consisting of a stylized Eiffel Tower bearing a banner having the colors of the French flag, and the word "france" underneath it, registered to "Etat Français, représenté par; le Ministère de l'Agriculture et de la Pêche government ministry of france FRANCE 78 rue de Varenne F-75349 PARIS 07 SP FRANCE".
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This post is made in the context of professional discussion of general patent law issues and nothing contained herein may be construed as legal advice.

MYK

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Also are you in acknowledgement that a legal domain such as Cultural Heritage Law or Intangible Cultural Heritage Law (ICH) exists, because I can certainly see how pointless it would be discussing the law in terms of ICH Law if you or every lawyer and lawmaker in the United States is not in agreement that such a "legal theory" exists in the first place. Because I'm inclined to believe according to certain international legal principles out there eg. WIPO's and the UN's that ICH Law does pertain to trademark law, copyright law, and even patent law - especially when all these legal domains are engaged in the "usage" of what would according to ICH legal terms would, potentially, constitute as someone or some group or others ICH.
It exists.  It doesn't mean even 0.000001% as much as you think it does.  It's basically a sop thrown to a bunch of feel-good activists to say, "Ok, we acknowledge that the Oieuuaooxi Tribe of Southeastern Slobovia once claimed that a flying weasel gave them a cure for male pattern baldness, which has precisely nothing to do with minoxidil but nevertheless to make them feel better about never having developed beyond the use of rocks to pound open coconuts and each other's heads, we'll say they came up with the idea of a baldness cure."  Yay for cultural heritage.

The "commercial" use of the mark MAGIC is an example where I would argue that it does.

Nope. As far as your argument that the Afghan people somehow own all rights to the use of the word "magic" as a trademark for anything and everything, it's simply laughable and there is no basis for it in law, whether international, U.N., intergalactic, U.S., or even Canadian.  If that makes you feel bad, well, the world is a harsh place.
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"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

mojobadshah

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Also are you in acknowledgement that a legal domain such as Cultural Heritage Law or Intangible Cultural Heritage Law (ICH) exists, because I can certainly see how pointless it would be discussing the law in terms of ICH Law if you or every lawyer and lawmaker in the United States is not in agreement that such a "legal theory" exists in the first place. Because I'm inclined to believe according to certain international legal principles out there eg. WIPO's and the UN's that ICH Law does pertain to trademark law, copyright law, and even patent law - especially when all these legal domains are engaged in the "usage" of what would according to ICH legal terms would, potentially, constitute as someone or some group or others ICH.
It exists.  It doesn't mean even 0.000001% as much as you think it does.  It's basically a sop thrown to a bunch of feel-good activists to say, "Ok, we acknowledge that the Oieuuaooxi Tribe of Southeastern Slobovia once claimed that a flying weasel gave them a cure for male pattern baldness, which has precisely nothing to do with minoxidil but nevertheless to make them feel better about never having developed beyond the use of rocks to pound open coconuts and each other's heads, we'll say they came up with the idea of a baldness cure."  Yay for cultural heritage.

Once again, not to "kill a dead horse" or anything, but this is topic which I am genuinely interested in.  I can't help but appreciate knowing where all the language we use came from, and whether or not "common law" considers language "IP," how language and the "mechanisms" or "wordmarks" within a "language system" possess a "utility," as well as how the "utility" of these "mechanisms" are tied to the economy. 

As far as the example you have provided I understand your point, but if that's REALLY how pathetic international policy really is the why are nations like the United States funding half of intergovernmental agencies like the UN or even members of the UN?  Are you saying that the UN and UN policy is "hocus pocus"?


       


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mojobadshah

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The "commercial" use of the mark MAGIC is an example where I would argue that it does.

Nope. As far as your argument that the Afghan people somehow own all rights to the use of the word "magic" as a trademark for anything and everything, it's simply laughable and there is no basis for it in law, whether international, U.N., intergalactic, U.S., or even Canadian.  If that makes you feel bad, well, the world is a harsh place.

I want to make this clear: I'm not proposing that the "exclusive" right to use the mark MAGIC in "commerce" should go to the "Afghan people" in the sense of the Afghan establishment that is tied to a "religious state," rather one which serves the same purpose that the USPTO does, but more "authentically," more "genuinely," and more efficiently and also one that would be more inexpensive to "registrants" of the mark - an corporate establishment that would work the same way for any other "private cultural community" establishment and the "loan-words" tied to them (moreover, I'm not necessarily even proposing that this prospective Corp. has to be run by the Afghans or Irano-Afghans themselves per se, rather any individual that is capable of securing, that when push comes to shove, people know where the mark MAGIC ultimately, really came from and is also capable of preventing the "defamation" or "damages" to the mark.  I'm sure anyone who identifies with any establishment - political, commercial, or even non-commercial - can respect such a prevention or "safeguarding" effort.  Because I for one, being that I have an interest in both language and history, am not happy about having to, personally, reinforce the truth when it comes to anything out there in the world, especially when it comes to a truth that is tied to an "8000" year old history, and when plenty of other people out there are just as capable of conceding - "common sense" aside - to this fact of history and language, should be well-established, but is not because the Afghans just got here).

Going forward: I know that the legal principles embedded in the United States Constitution (which if I'm not mistaken do pertain to Constitutional Law) are hardly ever "amended" and I have already referred to the 5th Amendment concerning the a persons "private property."  And I get that according to our "common law" or legal code now that there is no "basis" in United States law code according to the present "political norms" concerning what is IP and what is not IP, but is there anything anywhere that shows that this "political norm" will... never change?  And not to play semantics games, because I understand when you say no basis in "law" that you are referring to "common law," but it's no joke that "systematic rules and laws" or "empirical law" (and "well-established" I might add) shows that the "source" of the mark MAGIC is the Persian or Afghan language.  We have already discussed how virtually every dictionary in the world points to this fact.

So under any other conditions, I would proceed this discussion, by conceding to your argument and admitting defeat and - being that one of the "most used" history textbooks misappropriates the mark MAGIC and the origin of the "expression" MAGIC to the Egyptian cultural heritage instead of rightfully to Persian or Irano-Afghan culture - I would then inquire into how an Afghan American would go about making certain that publicly funded schools do go about making amends to this type of educational malpractice (or do you not see a problem in this, putting yourself in the shoes of an Afghan American, or even just from the standpoint of someone who is in the know when it comes to what is "authentically" Egyptian or Afghan and "authentically" not Egyptian or Afghan history?), but under the "prospective" conditions that a "mechanism" such as a "word or wordmark" does fall into category of "private [cultural community establishment] property" can you tell me how the "exclusive right" to use a word (or wordmark) - the mechanism of communication - "in commerce" (not for religious use or even political use) such as MAGIC which is according to every "authoritative -academic source" (not "common-sense" derived authority) tied the heritage an any individual or group to would be any different than a person's "due process right" to THEIR inheritance - such as money in the bank,  a house, or even a car that was "imparted" to them, or "inherited" from previous generations (according official documentation eg. immigration records, also according to the science of historical-linguistics)? 
« Last Edit: 04-16-16 at 05:25 pm by mojobadshah »
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