Tuesday, June 22, 2010

Naked Trademark Battle

NyPo reports:
The Naked Cowboy claims a bawdy, bikini-clad female busker who calls herself "The Naked Cowgirl" is ripping off his shtick, and he's threatening to lasso her into court for as much as $150,000.

The cowboy, whose real name is Robert Burck, sent a cease-and-desist letter to his foil, Sandy Kane, a fixture of the city comedy scene and former stripper famous for closing her act by lighting her breasts on fire.

"Your use of Naked Cowgirl is essentially identical to the Naked Cowboy and is clearly in violation" of Burck's trademark...
This is an absurd use of trademark law, something I think Jeff Tucker, Stephan Kinsella and I would agree on.

The difference from my view and that of Tucker and Kinsella is that Tucker and Kinsella see a fundamental problem with trademarks ( I am assuming a private property society here--no government) whereas I would hold that an entirely unique creation, say the dollar sign painted by Andy Warhol, should be a recognized trademark in a private property society.

The basis for my distinction is the "independence" of discovery. Clearly, it is very possible that Naked Cowgirl could have thought of the words "Naked Cowgirl"on her own, so there is no way "Naked Cowboy" can prove that "Naked Cowgirl" stole his concept. These are common words.

On the other hand, the uniqueness of the work of Warhol would make it a very steep hill to climb for someone else to claim that they independently created the exact dollar sign that Warhol did.


  1. I spoke to Kinsella about 4 or 5 years ago and he told me that his ideal system respected trademarks and trade secrets, which he thought were the only forms of "IP" that actually were related to a potential crime, fraud in the case of a trademark violation, and theft/breach of contract in the form of a trade secret violation.

    If I own Coca-Cola and I have developed the distinguished Coca-Cola trademark logo, it would be fraud for another individual to use my trademarked logo on his non-Coke product and try to market it as actual Coke. Technically, I'm not even sure if he'd be prevented from using the term "Coke" or "Coca-Cola" to market his product, but if he copied my trademark to make it appear as if he were offering (true) Coca-Cola, he'd be defrauding his customers which would be considered a crime (he took their money under false pretenses).

    Similarly, if I hire someone and have them sign a contract that one of the conditions of hiring them is that they will not share any trade secrets they learn in the process, and will not try to compete against me should they leave my employ, that seems to be another reasonable implementation of IP because it's all voluntary. Should someone develop my product independently as a third-party unrelated to those I employ, they haven't stolen anything from me or violated any contracts so I would not be able to prosecute them (as I would currently under patent law).

    So, unless Kinsella changed his tune (I don't know where Tucker stands on "voluntary IP" such as trademarks and trade secrets), I think you may be confused.

    It will be nice when you finally publish your IP book so we can all start taking swings at your IP views because right now it's unclear what they are and why and everytime people try to critique them you insist we wait to read your book!

  2. If Burck loses the legal battle, he should set his breasts on fire. Give her a taste of her own medicine.