(Disclaimer: I am not a lawyer.)
In the aftermath of the massive judgement against Pharrell and Robin Thicke, there have been a lot of analyses of the accuracy of the jury decision. (Personally, I think that the jury got it wrong and that the decision will be successfully overturned in appeals.) My thoughts, however, ran along an entirely different path. Instead of wondering if this lawsuit will have long-term affects on songwriters or not, I pondered the unique nature of protecting your copyright versus defending your trademark.
There is a three year statute of limitations for copyright infringement. The clocks starts when the copyright owner either discovers the potential infringement or should have discovered it. Obviously, there is a lot of flexibility here. In the case of "Blurred Lines", the Gaye family would have been hard pressed to prove that they didn't hear the song since it was so ubiquitous. So that's the reason they had to take action before the three years had elapsed. But they didn't have to do so immediately after hearing the song, of course.
With trademark infringement, there isn't a precise statute of limitations although criminal infringement (for any protected intellectual property) is five years. A federal trademark registration is for an initial period of 10 years with indefinite 10 year renewals subject to the proper filing procedures. The period for patent infringements, btw, is six years.
But this is not the distinction that interested me. It is the concept of Laches.
It is possible for a trademark to lapse if the owner fails to defend it when there is an infringement. In this instance, good things do not come to those that wait. So, if you own a trademark and discover a potential copy-cat, you could lose your right to stop that infringement and collect damages if you take no action. Defending it could mean a simple cease and desist letter and does not necessarily mean filing lawsuits on a drop of a dime.
However, with copyrights, that is not the case. A copyright owner does not lose their copyright, ever, by not deciding to defend it. If the Gaye family had decided not to pursue Pharrell and Thicke, their copyright would not have been in jeopardy. They would still have their full rights to defend it against any future infringer. Even if their case gets overturned, it still won't have an effect on any other infringement lawsuits that they may file.
There are many other ways trademark protection can be lost. One of the most well-known ways is for it to become a generic term like Scotch tape, cellophane or escalator. That is often out of the control of the trademark owner. Failure to police a trademark is well within the control of the owner.
Why, then, is there such a major difference between the obligations of defending a trademark and a copyright? Both are considered IP and uniquely valuable to the owner. Perhaps it is the indefinite length of a trademark versus a copyright. I'm not sure. But in this one instance, let's chalk up one advantage to the music owners and be "happy" about it.
P.S.: I know that many will take umbrage with the title of this blog since Scotch tape was one of those instances where a trademark became generic. Even though it wasn't 100% precise, I just like the sound of this blog's title. That's all.