The Traklight Blog

One of the more salient points undergirding pitches for collective action on things like climate change is that we share this place we call Earth, not only with our contemporaries but with future generations. Both states and individuals can claim ownership of some portion of land or sea or sky, but true ownership ultimately eludes any such as us who are transitory figures on a body that has existed long before we arrive and will continue to exist after we've departed as a species.

Amidst the ongoing reckoning over America's largely shameful treatment of people of color, branding probably ranks as a secondary or tertiary concern, but it is a concern nonetheless. Changes in that arena aren't going to be as meaningful or substantive as changes to broader social policy, but there is a case to be made that we can't move forward, or even hope to move forward, until we make changes to the signifiers and reminders we see everyday without thought or consideration. Just last month, Cleveland's baseball team announced they'll be dropping the name "Indians" after over a century of use, after Washington's NFL franchise announced their own name change earlier in the year.

You could be forgiven for thinking that the biggest thing going for the surname Hamilton is the Lin-Manuel Miranda-penned musical, a blockbuster of both stage (back when theaters were open) and screen (via a release on Disney+). But that would be a myopic view of both the world and pop culture, one that excludes the larger world of culture and sport. And in the interest in broadening all of our horizons, we're heading across the pond and into the cockpit for today's IP news.

Most people intuit that advertising is some mix of fact and fiction; not lies per se, but perhaps a burnished version of the truth. Rare is the product that actually changes our life (although, fingers crossed) and that knowledge is baked into our reading or viewing of advertisements. We look past the embellishment to try and discern if the product in question will do what we want, at a price we can live with. Everything else is about rising above the noise to grab our attention in the first place.

At the risk of sounding glib, has any company fared better during the pandemic relative to its prospects otherwise than Zoom? Amazon has done well, sure, but Amazon will always do well. Zoom, on the other hand, has gone from useful to vital in a period of months, and probably more accurately in a period of a few weeks in the spring when every meeting became a virtual one. I can't attest to Zoom's outlook pre-COVID, but undoubtedly this period has led to the type of success that spurs thoughts of exponential growth and, inevitably, brings lawsuits.

Trademark opposition seems to be the new "it" thing for major companies; more accurately, opposition that would be termed to be in bad faith is the new hot trend in the IP space. You need not look very far back in the archives of this blog to see a spate of similar stories, and while that may seem like repetition or redundancy more than anything else, it's worth pointing these instances out where possible in the hopes that public opinion, if nothing else, might put a halt to these sorts of cases...eventually.

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.

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.

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.

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.

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?

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.

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.

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.

Verisimilitude in video games is a relatively new issue, and as seen in the case brought by Lebron James' tattoo artist against NBA2K, it brings with it a host of new issues about depiction and representations in the medium. Trademark or copyright aren't much of a concern in 8- or 16-bit formats, but design and computing power is now such that photorealistic depictions of actual items isn't just possible, it's expected in modern gaming, although many choose to go the route of generic names and brands within games to avoid any legal complications.