The Traklight Blog

What can be said for fast food is that, for all the franchises and chains that exist, there are only but a few options on offer, and that the distinction is in the differentiation. In that way, fast food isn't all that different from any other industry; many make similar products, and where they get the edge is in their own "special sauce" that puts them above the rest, be it process or branding or small but distinct differences. It's that "special sauce" that needs to be defended, and the franchise that gave us "special sauce" itself is looking to maintain its hold on branding built over decades.

It's been a long-standing matter of contention as to the right to alter a piece of artistic work. Generally speaking, if someone is to make alterations in a manner consistent with added artistic value, they have far more leeway than might be given otherwise under intellectual property law. But what if you're just removing things from said work?

IP law in the creative field is meant to protect against the commercial exploitation of someone's work by non-rightsholders, but what happens if the infringing work in question is never meant to see the light of day but gets out anyway?

What happens when a product reaches a level of ubiquity so prevalent that it becomes representative of both itself and its competitors, regardless of origin or manufacturer? Take for example Coca Cola: in certain areas of the country, "a Coke" is a catch-all term for any soft drink, even though that particular beverage is but one of many available to consumers. As trademarks go, however, Coca Cola has no grounds to take any sort of action against any of its competitors, because none are selling their drinks using the Coke name; rather, it's a term that has grown organically and is used colloquially. What happens when such terms enter both the lexicon and marketing materials?

We've all probably experienced the phenomenon of cascading bad luck, wherein misfortune piles upon itself until we feel that fate has conspired against us. The alarm doesn't go off, the car won't start, work projects go awry —eventually we feel like kindred spirits with Job. But however bad our toughest periods might have been, we can at least take comfort in the fact that we're not TikTok.

I've written previously about the relatively recent problem of video games reproducing real-life products and places and the potential for trademark infringement, at least in the minds of those companies who find their products in games that seek to replicate facsimile of the world as we know it. Not every game seeks to do that, however; in fact, most games use the technology available to create something new entirely, often recognizable as something that can only exist in the digital sphere. That doesn't seem to mean that trademark disputes won't port into this new realm, apparently.

Among the many benefits that the proliferation of the internet and search engines have provided, finding song lyrics wouldn't rank among the most important, but it would certainly be a more popular use than, say, looking up academic papers for school work. And it's an underrated benefit; for years prior, you had to rely on liner notes from records or CDs, and that's even if the artist put the lyrics there. Otherwise, you were left guessing as to whether you heard the words correctly over the radio, only to be corrected years later.

Innovation is what spurs tech companies to the top of the proverbial pile, but, once there, some seem to lose that innovative spirit, relying instead upon their accrued power to stay atop the marketplace. Instead of coming up with new ideas, it's easier to simply buy up the innovative companies out there, or perhaps just copy the innovation you see. At the risk of generalization, Big Tech can get lazy, and that laziness can result in problems if they're not careful about what they do.

What right does any company have over names that are similar only due to that company's sheer size and ubiquity? It's true that certain brands can be evoked not only by their name and logo, but by an entire subcategory of similar designs and conventions, but should that be the case, from a legal perspective? Maybe it speaks poorly of our regulatory bodies that said companies are allowed to lay claim to names and marks considered too similar, and that such matters are ultimately decided by those companies and their resources — resources that smaller businesses deemed to be infringing cannot possibly match in a legal battle.

In cases of infringement, intent is irrelevant to the substantive facts of a case. Either something infringes upon a copyright or trademark or patent, or it doesn't; whether the accused meant to do it or not changes nothing. Still, it probably matters to our ideas about justice and recompense as to whether intent existed or not. We're far more likely to be forgiving of a careless mistake made without malice than instances of deliberate theft, and perhaps more likely to be considerate of others' IP if we've had our own misappropriated.

For some products, form matters as much as function, if not more so. With something like, say, your lawnmower, the aesthetics aren't so important as long as it performs the work of cutting your grass. But your car? Your car says something about you, given how much you might be investing in it. And it says something about the company that made it, which is why some car makers have labored for decades towards mastery of the form as well as the mechanics, and have sough to protect the designs they've made iconic.

There's nothing good that can't be ruined, and nothing bad that can't be made worse, and that holds true for intellectual property as it does for anything else in life. Take the Digital Millennium Copyright Act (DMCA), for example; like any law, it has its flaws, but applied in the spirit in which it was intended, the DMCA probably does more good than harm. But measuring good versus harm is always subject to the small group of bad actors willing to do the worst things they think they can get away with, and those outliers are often enough to sway at least some thinking on the efficacy of any program or law.

If you've even spent any time on Twitter (and for your sake, I hope you haven't) you recognize it as a space largely disassociated from the world in which its users live. While there are plenty of real people engaging in genuine interactions, no one is necessarily attached to any actual identity, and thus millions are large freed from the consequences that might follow them in real life. It can feel like a space to say and do whatever you want, with seemingly no one interested in stopping you, save for the overwhelming concern Twitter professes for copyrighted material. And now Japan seems poised to take that concern to perhaps absurd heights.

We've placed an awful lot of faith in technology to fix problems and generally bail us out of issues we've created for ourselves as a species, from the biggest existential threats to the smallest inconveniences. Which is all well and good, save for the fact that tech has shown itself to be as smart as we might assume it to be, or rather is only as smart as the people creating and programming it.

It's easy, in many instances, to see violations in the IP sphere to be of less consequence than other crimes we see in the news. After all, there's no physical violence done to any of the parties in those cases, with the only harm being financial, and even that is abstract or theoretical, given that what is stolen is value rather than actual dollars. That it's value is still of consequence to the companies losing out on it, and thus to those found guilty of improperly depriving that value to those who rightfully own it.

There's nothing like success to warrant a bit of added scrutiny, especially when it comes to Big Tech, specifically social media. Facebook likely longs for the days when its worst problems were questions of propriety and ownership; The Social Network might seem downright nostalgic in the face of concerns over hate speech and misinformation that threaten to unmoor democracy itself. Twitter is similarly vexed by its own efforts to curb invective and untruths, particularly from influential users. Now TikTok, not so long ago the fun new app for the youths, finds itself assailed on all sides, including on the IP front.

Should we applaud someone for doing the right thing, even if it took far too long for them to do it? That's the question many people might have upon the news that the NFL's Washington franchise has decided to "retire" their offensive nickname in favor of a new one. While the impetus for the change was largely the potential of losing sponsor dollars rather than responding to social pressures or basic notions of civility, the end result is one that most feel is long overdue, given that the campaign to change the name predates the Black Lives Matter and related movements considerably. But while the decision to change the name may have been easy in this particular moment, the actual process may prove to be harder.

Plenty of small businesses use locality in creating a brand for their business. Here in the greater Phoenix area, there are no shortage of companies that make use of "Phoenix" or "valley" or "Camelback" or some other identifier of the region in their name, and no one bats an eye; after all, the name simply locates the business in the world. Then again, none of those companies have likely tried to trademark "Phoenix" knowing that such an effort would be entirely futile?

Change is necessary if we hope to grow, if recent events have taught us anything, but change can at times be difficult for practical and commercial reasons. Names are freighted with meaning and sown into our consciousness with time and repetition, and it's impossible to simply remove negative connotations while keeping the positives, and thus names have to be changed entirely. It's difficult for some, surely, but necessary to move forward, although the growth process might not be aided by further mistakes made while trying to change.

Accountability is at the crux of this moment of our history — who bears blame for their action or inaction, particularly when the cost is borne by others. And yet it's often the case that, for those in power, accountability lies elsewhere, often diffuse and shrouded behind rules and regulations and the law. Laws can protect us, but they can also serve as a fig leaf which people and organizations use to avoid questions or silence critics.