Trademark Law, The Chicago Cubs, and Welfare for Billionaires

By Mike Tront

The Chicago Cubs haven’t won a World Series in Major League Baseball since 1908.  This year, however, they are the favorites to win it all.  With less than a week to go in the season they have long had their division title clinched.  While the players are battling on the field for the World Series, the front office of the Cubs is fighting a different battle.  As their team wins more games, and as their players become more popular, people are making money selling merchandise not approved by MLB or the Cubs.

In a minute, I will argue that there should be no copyright or trademark laws at all.  People and corporations shouldn’t be able own an image or an idea.  Copyrights and trademarks are nothing more than the wealthy creating laws so they can stay on top.  It’s welfare for millionaires and billionaires.

But first, I want to tackle one particular ridiculousness that the Cubs have recently fought for and won.  The above linked article, from the Chicago Tribune, at one point mentions a problem with a specific type of merchandise.  Some shirts have no Cubs or MLB logos on it, but do have a flag with a “W” on it.  This flag, made famous by the Cubs, who fly a “W” flag after every Cubs victory, has been recently ruled to be property of the Cubs by the courts.  This means that no one can sell a flag with a giant blue “W” on a white background without fighting the Cubs and Major League Baseball.

In fact, in 2015, a completely unrelated financial startup was taken to court because their logo is a large “W.”  Even though it is a different color and style as the traditional flag the Cubs fly, they had to spend money to defend themselves.  The suit was eventually dropped, but there’s no way for the legal fees to be recovered.  They thankfully had the resources to defend themselves, but many people and companies don’t.

I’m sure many can agree that trademarking this “W” flag is pretty ridiculous.  It’s not their team logo, it’s not on their uniforms, it’s literally a flag they fly after a win that just has a big “W” on it.  This clearly goes to far.  But I don’t want to stop there.  All copyrights and trademarks laws are wrong.

Objections to Eliminating Copyrights and Trademarks

The first objection that is usually brought up is that companies spend millions of dollars designing, creating, and marketing their logos and ideas and other people shouldn’t be able to profit off this work.

The other major objection to having no trademark or copyright laws is that people will be a victim of fraud and knockoffs.  After all, if a company can’t own a logo or phrase, what would stop me from making my own beer and slapping a Budweiser label on it?  If they can’t own their labels, logos, and phrases, then no law would stop me from doing it and customers won’t know they’re actually not buying Budweiser.

In my mind, these two objections are related.  Companies should protect their reputations and the consumers need to know who they are really buying from.  I totally agree.  My above scenario about creating a fake Budweiser shouldn’t happen in a free market.  So without trademark and copyright laws, Mr. Libertarian, how would this be stopped?

Let’s look at the victim.  The victim in the above scenario isn’t Budweiser, it’s the consumer.  If I sell a product that I made in my basement, but claim it was made at the Budweiser plant, I’ve now defrauded the customer.  Therefore any customer who bought from me has a right to sue me.  I’ve used fraud to take their money.  In a free market, individuals and companies who misrepresent their products would be eliminated fairly quickly.  If every customer you sell your fraudulent product to has the right to sue you, it won’t take long for the class action suit to take you down.

The fake label Budweiser scenario would and should be stopped with or without copyright and trademark laws.  There is, however, one type of person that can’t be stopped in a free market.  That’s the vendor that sells knockoff merchandise so long as they expressly let that fact be known to their customers.

For example, in the article about the vendors selling Cubs merchandise without the permission of the Cubs or MLB, there really is no problem there.  The only potential problem is if the vendors insinuated that the merchandise was authorized or produced by the Cubs or MLB.  So as long as they let the customers know that this isn’t “official” merchandise, no one should be able to stop them from selling it.

What this comes down to is that people and companies can’t own ideas or images or phrases.  Just because I design something in a certain way, that doesn’t give me the right to stop other people from designing their products in a similar way, or even in the exact same way.  The only issue is if someone sells their product and claims or insinuates that I was the one who made it or approved it.

Copyrights and trademarks are nothing more than wealthy companies lobbying government to protect their profits.  The only reason companies can sell merchandise with sports logos on them for twice as much as normal merchandise is because they can use government force to stop others from competing.  Same goes for designer clothing, expensive gym shoes, and any other high end item where you’re basically “paying for a name.”

These companies can charge what they charge because they have exclusivity enforced by the government.  But what if anyone could make a hand bag that is identical to a Gucci bag, right down to the logo, but could charge half the price?  As long as this company expressly lets the consumer know that they are in no way affiliated with Gucci, there is no crime there.

When governments pass laws to regulate businesses and to “help the consumer,” just remember that the people making these laws are being funded by the same companies they are supposedly regulating.  This means that these laws end up helping the entrenched businesses and end up giving the consumer less choices.  Less choice means less quality and/or higher priced goods and services.  Copyright and trademark laws are no different.



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