Name a type of intellectual property that the owner can’t practice?
If you own a patent, you can practice your own invention.
If you own copyrighted material, you can certainly publish and sell it.
If you own a trademark, you can certainly put it on your products.
In contrast, I think the certification mark is the only type of intellectual property that owners can’t use themselves. Owners are are only allowed to license the intellectual property to others
The owner of the Good Housekeeping Seal can’t put it on the its own products (such as the Good Housekeeping magazine). The idea is that it is too severe a conflict of interest to certify your own goods or services as complying with the requirements of the certification mark.
So what? Well sadly this means that Jennifer Brown and I are the only employers in the world that can’t use the Fair Employment license as a means of committing ourselves to non-discrimination.
And it’s interesting that the Fair Employment mark can potentially protect employees in other countries. That’s right. It’s not just away for any U.S. business to opt into ENDA, but the fair employment mark gives businesses in any other country an opportunity to make a legally binding commitment not to discriminate. Just as Jennifer and I can enter into a contract with an Italian business to buy flowers, we can enter into a contract with the same firm whereby we grant them a license to use the certification mark and they make a contractual promise not to discriminate.
So let us be clear. Non-U.S. readers of this blog, we welcome you to license the mark as well. Ask your boss if she is willing to promise not to discriminate. Of course, it might be unduly burdensome for Italian employees to sue in U.S. courts but some non-U.S. jurisdiction would even give local employees (third-party beneficiary) rights to sue at home based on business’s contract with us.
This imperialistic potential for the Fair Employment mark also suggests a dimension on which the mark is more powerful than a federal statute. The mark would allow non-US business to provide non-discrimination coverage for their workers. If ENDA was passed as federal legislation, it would mandate domestic compliance, but in contrast it wouldn’t even give foreign employers the option of having their employees coverage.
Maybe Congress should rethink the jurisdictional scope of its laws. Like the fair employment mark, maybe Congress should allow foreign businesses and individual to opt into certain U.S. regimes if they want to. If a non-US firm wants to be covered by Title VII’s prohibition of sex and race discrimination, maybe Congress should given them an option to opt into a contract with the United States. There might even be contexts where it would be in our interest for Congress to even allow opt-in enforcement. If a non-US firm said it wanted to be bound by the NLRA or Title VII, maybe it wouldn’t be bad to empower the NLRB or EEOC to enforce the promise – analogous to the way that traditional certification mark owners certify compliance with their marks.
Hi, I would like to know how to offer my ‘Hygieneology’ for profit in the form a ‘blog’ – any pointers there? and what’s involved – costs, et al… Thanks
Hygieneologist
I don’t find that to be a convincing argument for not using your own licence. Just as http://creativecommons.org/ is licenced under a Creative Commons licence, I see no problem with you “leading by example” and using the Fair Employment licence.
OK, maybe this is a picky comment, but isn’t it true that a patent owner doesn’t necessarily have the right to practice the patent? When, for example, the patent is an addition to someone else’s patented invention. So a patent, strictly speaking, is only a negative right, right?
Yes, Patents only grant exclusionary rights. So, holding a patent doesn’t mean that you can practice it, only that you can prevent others from doing so.
Not a picky comment. The inability to practice one’s own IP was a lead rationale for the point made in the article. And of course a patent is the leading example of an exclusionary-only right, as noted.
So Prof. Ayres didn’t think to set up a separate corporation that owns the certification mark and carries out the licensing? And one would think that such a corporation wouldn’t necessarily need to certify itself, since the consumers of the certification license wouldn’t be shopping around among certifiers based on whether the certifier is certified. Or maybe if there were competing certifiers, they could certify one another and then be certified.
Then the two profs could hire “fairly” for other purposes and themselves be certified by the certifying corporation.
Another alternative answer:
http://icnewcastle.icnetwork.co.uk/0100news/thejournal/tm_objectid=15502963&method=full&siteid=50081&headline=message-in-bottle-to-the-eurocrats-name_page.html
article cited at Reason.com site.
Ian Ayres has that question at Balkinization but, again, he is wrong. Patents are exclusionary rights.
How about the integrity right of moral rights, which allows an artist to prevent certain alterations of a work? (See, e.g., Copyright Act 106A(a)(3).) The owner can *enforce* that right — just like the certification mark owner can *enforce* rights in a certification mark — but it would not seem to be the case that the artist “practices” the moral right of integrity in the sense that “practice” is used in the question. (Alternatively, if an artist is considered to “practice” such moral right of integrity by enforcing it, seems to me that a certification mark owner can similarly be said to “practice” rights in a certification mark by enforcing them.)
Dave Shukan makes an important point. When we are talking about “practising” an IP right are we talking about economically exploiting it through legal remedy or are we talking about protecting it through equitable remedy? In the case of moral rights (integrity and attribution) the author has certain inalienable personal rights, the infringement of which give rise to equitable remedies (i.e. injunctions, restitution for proven damages and exemplary fines for egregious behaviour on the part of the infringer) that are a response to the personhood connection of the author to the creative expression. In the case of the exclusive right to exploit the economic return of IP rights, the author is granted (as part of the “incentive” bargain) alienable, time or conduct (in the case of trademark)-limited rights of protection against infringement that are of a strict liability nature. Therefore, is practicing an IP right a legal or equitable activity?