Trademarks are strange beasts
A better example of trademarks is of course the registered trademarks, for example that of the Brazilian football club Grêmio Football Porto Alegrens. In a recent case a Brazilian judge said, in a case of trademark infringement, that the club could not get awarded compensation for moral losses. The judge did grant compensation for material losses. At an appeal, the judge was proclaimed right by a minister.
I’ve sometimes heard that trademarks function very well, that they’re a consumer protection mechanism and that they do not belong to the intellectual property rights.
The Brazilian case shows the contrary: an intellectual property right is the equivalent of property (matter) in information space, and that’s how the legal system can award compensation for material losses. Damages to the reputation of the trademark owner can only arise when consumers have been misled by the infringer to think the product was better than it really was, or if the products drag the trademark holder in the dirt.
Apparently consumers have not been damaged in this case, but the material resources of the club have.
About a year ago I wrote a considerably more aggressive analysis of the trademark system at this blog based on a book in law by Ulf Bernitz. Perhaps there is reason to take an even closer look at trademarks now, than what became encouraged by the Piratpartiet program of principles this spring?