The Traklight Blog

You've probably heard of the "Streisand effect" or at at least familiar with the general principle of the thing: the idea that, by trying to shut something down to avoid bringing attention to it, you are in fact bringing the very attention that you hoped to avoid. There's sense to the idea, not that most of us will ever find ourselves the subject of much attention or scrutiny. And yet, many that should know better fail to learn the important lesson that it's often better to simply let things go rather than given them oxygen.

In reading about the many specious patent lawsuits pursued every year, it's some small comfort to know that there are judges still serving as gatekeepers to prevent many of these cases from going any further than they already have. Perhaps not enough, given that certain jurisdictions carry a reputation for being favorable to those types of lawsuits, but at least observers can feel that they system is ultimately working as it should, shaky as that belief may be.

Despite what we teach our children, and what we would like to believe ourselves, it seems that bullying really does work to the benefit of the bully and to the detriment of those targeted. It's unpleasant to think about, surely, but how else are we to describe a state of affairs in which might alone makes right? Other conceptions of morals or ethics seem outdated when faced with this raw exercise of power unchecked by anything but their own limited constraints.

If ever there was a boomer story, this is it.

Most famous art has become, over the course of time, tied to the artist that created it. Da Vinci pained the "Mona Lisa," van Gogh pained "Starry Night" and and on and on until you reach the end of the casual knowledge of art the average person possesses. No such relationship exists in commercial art, which, despite protestations of purists, certainly rises to the level of some kind of artistic expression, or is at least relevant enough to warrant inclusion in that conversation. Most of the iconography attached to brands or products comes from an originator anonymous to all but a few, which can make for compelling mystery when questions of ownership and origination arise.

Finding a great name for your products is hard enough, so when you land upon the right one, you want to do everything you can to hold onto it. After all, good names help to sell products, and bad ones can similarly dissuade consumers, unfairly or not. Branding does matter, and it does work, else it wouldn't continue to exist as it does. So when a trademark case forces a company to rebrand or alter a product name, the cost is in more than the dollars spend in implementing those changes but in the damage possibly done to your public perception.

Technology, particularly that designed with an eye towards curbing reliance upon fossil fuels and/or alleviating the incipient climate crisis, is meant to be the magic bullet to save the human race. But that tech is still designed by people, and as much as the machines are meant to represent human advancement, the humans behind it are still tied to some of the baser instincts that landed us in our precarious position in the first place.

In many of the intellectual property suits that make the news, it's easy to see the penalties or consequences as something of an abstraction. Dollar figures in an article never do seem quite real; it's not as though the stories come complete with a picture of the pile of cash to be handed over to the winning party. And in the case of massive corporations, those figures never seem that much relative to what we think or know of that company's bottom line; what's a $50 million judgment against annual revenue many multiples greater than that?

What is perhaps underappreciated, or not understood at all, by those with only a passing knowledge of the online video economy is that many creators are reliant upon the ad dollars that come in from monetization on YouTube (Or perhaps other platforms). Thus a loss of the ability to feature ads or profit from them is akin to, if not losing a job, working at that same job for no pay. It's admittedly a foreign idea for those over a certain age to wrap their heads around; until a few years ago, jobs were done in offices or factories or out in the workaday world, not in front of a computer. Nevertheless, it's a viable way for many to earn a living, even if all but a few aren't making much more than that.

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.