The Traklight Blog

Say what you want about American intellectual property law (and I do), but it certainly lets people try their luck at obtaining just about any sort of mark or patent, even if the application is ultimately rejected. It's undoubtedly someone's notion of the American ideal that ambition in this arena not be bound by common sense or an actual understanding of the law but solely by their willingness to try and get one over on the governmental bodies in charge of intellectual property rights. It's the freedom to try anything you want, no matter how stupid or futile it might be, that is fundamentally American, you might argue. It probably won't work out, but at least you tried.

There's a dichotomy to being big, a paradox that comes with size relative to those around you: it's understood and expected that you should take the care to look out for those smaller than you as you make your way through the world, and yet being big gives you the option to simply do as you choose by virtue of the fact that you can make others get out of your way, lest they be knocked over or crushed.

It's important to establish at the top that we understand and value the importance of trademarks as part of the intellectual property portfolio that every company establishes and develops as part of their growth. Trademarks are necessary to protect businesses from infringement, as well as protecting consumers against knockoff or impostor products or brands. That being said, there are times that trademark law can seem to veer into absurdity, and that the principles designed to make for a better commercial marketplace for all seem to be gamed to benefit a certain subset of companies with more wealth and power (and access to power) than the mom-and-pop store down the street.

It doesn't take much to ruin a joke, and it's a sure bet that once corporations get involved and try to get in on the joke that it's run its natural course as something that was organically cool and fun and has now entered the phase of its existence where it's co-opted to the point of losing its edge and meaning. You can almost set your watch to the time it takes for a meme to be born on the internet to the time that it ends up on some company's Twitter page in post trying to sell you something, even if it's just that the particular brand is hip and with it and definitely a fellow kid.

It's once again time to look to the Supreme Court for its determination on a matter of great import to the very foundation of our nation as one still capable of upholding its laws, norms and traditions in the face of wanton disregard of those very precepts.

A common theme in this space, and many others like it, is the law as a weapon as much as a shield. Laws exist in theory to protect us, sure, but we're all eventually indoctrinated into the idea that laws also exist to protect the more powerful against challenge or consequence. There's a reason that we see companies like Facebook and others unencumbered by any fear of repercussion or reprisal when they do as they wish in the face of the greater good, and that's because there's rarely much chance that they'll face any measure of accountability. When you become so big that you can impose your will and face little pushback from even the bodies meant to keep you in check, we're reminded that justice and access to it are real and serious problems for many.

It's hard enough for most of us to conceive of being famous for any reason, and harder still to imagine somehow being both famous and anonymous, which would seem to most to be a middle ground that few would want to occupy. Those who want fame would want all the trappings that come with it, while those fervently avoiding the spotlight likely wouldn't want the hassles that come with maintaining that fame. There are a few to have pulled off the trick over the years — the guys from Daft Punk, pretty much any superhero (though Batman is famous in both of his lives)— but no one has pulled it off quite like the street artist Banksy, and now that remove from direct fame is causing some trouble for his trademarks.

It's easy to by cynical about big tech, mostly because that cynicism is earned, and if given enough time, will be validated over and again. But on occasion credit must be given where it's due, even if you know that any such plaudits will look terrible in the light of some future malfeasance, if it doesn't already.

Trademarks are a vital part of any business, and on most occasions, people don't or wouldn't begrudge a trademark filing from a company, save when it crosses a somewhat ill-defined line. Ohio State University trying to trademark "The" generated a certain amount of opprobrium, and people were upset that LeBron James attempted to trademark Taco Tuesday, and delighted when he was denied in his attempt. Those represent one strain of filings that offend our sensibilities in their ambition to capitalize on our common language, trying to turn a public good into private profit.

The old saw among the chattering classes is that there's no such thing as bad press, but recent years seems to have given lie to that notion. Indeed, nowadays it seems more beneficial to go about your work building a company quietly, lest your flaws and mistakes and in some instances weirdness be put on display for the world to see.

In watching LeBron James display his generational talents on a basketball court (last season notwithstanding), I occasionally give thought to a few passing similarities between us. In many (zero) ways, we could be mirrors of one another: both from Ohio (that much is at least accurate), somewhat close in age (sadly, I'm a year closer to forty than he is), both tall (a reach) and gifted at basketball (I can make a few free throws in a row, maybe). Yet our paths diverged, and he has gone on to fame and glory, a mastery of the sports universe that few could ever hope to achieve and a personal brand that now extends into realms beyond the basketball court. But he doesn't have this nifty blog to chronicle his and others' IP exploits, so I've got that going for me.

There are few things that can make us take leave of our senses more readily than sports, and when combined with parochialism and a provincial mindset, a certain mania is loosed within the minds of otherwise sane people. In fans, it leads to tattoos, to drunken parking lot fistfights with opposing fans, to shelling out obscene amounts of money on tickets and merchandise and every bit of ephemera that our favorite teams can churn out to make a dollar off of our insanity. In teams and institutions, it produces a hubris that can lead to a host of decisions ranging from questionable to outright objectionable, and that is being kind in the latter.

There are few hings more totemically American, at least in origin, as McDonald's. The arches. The colors. The menu items. The subsequent guilt and shame that come with each meal. It's a brand that's been built over decades, and one that serves as the foundation of what we know as fast food today. What we see in the logo and understand with the name is that we are going to get food of a particular quality at an understood price and in short order. That understanding and assumption is the essence of any brand, and it's why McDonald's and others go to such great lengths to protect their brand against what they perceive as a taint or diminution.

Names ultimately matter. That's more or less the basis of trademarks as a concept: the right and the necessity to protect the name we've built for something that's ours. something we've created. Our lives are ordered in some part by names, both the ones we've coined in the recent history of modern innovation and those whose origins are lost to time. We drive to work on a series of named roads, to an office building or complex that likely has a name, to work for a company granted a name by its founder years, if not decades ago. Anything less than that would be chaos, and even the occasional re-brand has us shaken for months.

For those closely following the news, one reality show star continues to dominate headlines. The star's behavior invokes questions of ego and avarice, and decisions made demonstrate a lack of sensitivity, both cultural and interpersonal. Despite these personal failings, the star counts nearly as many ardent fans as avowed detractors, with a family that casts itself as American royalty, despite a discernible lack of skills or scruples.

We have previously celebrated the new-ish advent of personal branding as it relates to celebrities big and small. Who are any of us to judge those who want to create a bigger identity for themselves, complete with signifiers? After all, celebrities are businesses unto themselves, and every business needs their own branding if they hope to grow and expand. We might not necessarily understand what these artists and entertainers have in mind with their choice in branding, but if we truly understood what goes into being a megastar, we'd probably be one ourselves, or at least close enough to one to bask in some reflected glory.

There are few symbols so powerful as the logos of major sports apparel companies in the minds of consumers. In the right hands, they've come to be associated with the greatest in human sporting achievement, a clever bit of branding on the part of the respective marketers who first saw the advantage of having their logos plastered on our best athletes as they appear on TV. For others, particularly those of us who have gone a little soft around the middle, the represent both comfort and potential. The combination of athletic footwear with the requisite shorts or yoga pants suggests, "I could go running today; I won't, but I could." And for many of us, that potential is enough to invest heavily in these brands meant for those gifted with more ability and more determination.

Intellectual property is the backbone of any business, as we are often preaching, and there are few bigger businesses in the world of sports these days than the athletes themselves. Far from the days when baseball players sold cars in the off-season, athletes are now brands unto themselves, complete with all of the trappings of any other big business. And part of that business is the branding — the names and sayings and logos that athletes can use to sell their merchandise, their social media presence, and themselves, in essence. And athletes are increasingly willing to zealously guard those aspects of their brand from misuse, even on the part of one of the few entities that might remain bigger than the players themselves.

If there is one thing that we have learned in this space, it is that brands don't take as kindly to puns, allusions or any other type of attempted tribute as those offering it might think. Many of us enjoy a clever play on words, but when there is a brand name and potential profits involved, entities tend to have less of a sense of humor than those of us without a stake in the matter.

While most of the country only looks to the Supreme Court when matters of broad national importance are on the docket, it's worth observing the court on more under-the-radar issues that could still have a significant impact on businesses or individuals around the country. One recent case could have massive repercussions in bankruptcy cases for years to come.