Appreciating Depreciation (or how I learned to love s. 22 of the Trademarks Act)

Editor’s Note: On Monday, March 10, 2008, Prof. Lametti delivered the lecture archived here. Thanks for those of you who joined us!

If you are unable to see the video above, please use the following link to open Windows Media Player on your computer: Link

Bio:

David Lametti is an Associate Professor of Law, McGill University, a member of the Institute of Comparative Law, and of the Centre for Intellectual Property Policy (CIPP). He teaches and writes in the areas of Civil and Common law property, intellectual property and legal theory. His most recent representative publications are “The Concept of Property: Relations through Objects of Social Wealth”, found in the University of Toronto Law Journal, and “Coming to Terms with Copyright”, in a collection published by Irwin Law.

One Comment
  1. Regarding Professor Lametti’s question to the audience at the end of his lecture, (is there depreciation of the goodwill associated with the Montreal Habs’ trade-mark when it is put on T-shirts and sold without a licence to use the trade-mark?), I have three observations:

    Firstly, Professor Lametti alluded to the fact that whether or not the logos were used under licence really has no impact on the performance of the hockey team on the ice. This remark touches on an important issue. Namely, that the Montreal Habs are not in business to sell clothing, their primary purpose is to be an NHL hockey team. Anything else that they may choose to do with their logo is subsidiary. Thus, the situation of a sports team such as the Habs, in contrast with a designer such as Louis Vuitton, (which makes fashionable clothing, handbags and the like as its primary business), is noticeably different. In the case of the former, knock-offs cut into the secondary business of the trade-mark owner, whereas in the latter they arguably threaten the primary business.

    Secondly, the lower-tech an item is, the easier it is for a third party to replicate, feature for feature. In the case of a t-shirt, there is really no difficulty for the aspiring knock-off artist to make an exact duplicate of comparable quality.

    Thirdly, the reason that the Montreal Habs sell clothing (or licence their trade-mark to those who do), is arguably primarily because Habs fans like to show support for the hockey team. Though the Habs will make a profit from the licencing fees, proceeding on the grounds that there would be no Habs clothing but for the existence of the hockey team, the clothing is largely an avenue to generate advertising and fan support for the “main event” – the hockey team. On the basis of this logic, straight copying of the Habs logo onto clothing by unlicenced third parties is still likely to further the Habs’ initial goal of generating advertising and fan support for the hockey team. Thus, it seems that there is unlikely to be a depreciation of the goodwill associated with the Habs trade-mark by the sale of knock-off t-shirts bearing the Habs logo.

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