The Traklight Blog

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.

The pandemic has forced nearly every business that relies upon having multiple people in a single location to rethink their models in a way that would allow them to continue operating with as little contact between people as possible. But what if your business is premised upon thousands of people gathering together in one location to watch an event, like sports leagues?

In a world that is globally connected, one thing that can remain regional and provincial is restaurants, or, given the conglomerated nature of everything today, restaurant chains. Each region of the country has its own chains that denizens swear by, and in moving west in early-2014, I became privy to In-N-Out Burger, which has no locations further east than Texas. Its reputation preceded it, and while the food is worth the wait you're inevitably forced to endure, the overheated hype from proselytizers made it impossible to live up to those outsized expectations. Nevertheless, you understand the populatity, and the brand that In-N-Out has built over decades.

We all remember movie theaters, yes? Building with large, dark rooms where we gathered to watch films together, back when such groupings weren't inadvisable? At the point where theaters were a going concern, superhero movies were the dominant storytelling form of the decade, and that success begat more and more franchises, folding in secondary and tertiary characters from the canon. That expansion not only tested audiences' appetite for super-powered fare but eventually the limits of branding.

When reality becomes stranger than fiction, one would think that scripted television would tend to suffer. Reading about the creation of the Space Force certainly felt like living inside fiction when the news broke a couple years ago, and so when the announcement of a TV show of the same name came later, it was hard to imagine how it could be any stranger or funnier than its real-world counterpart.

When it comes to products, names mean a lot, as do descriptors; some of the best brands are able to work descriptions into the name so as to leave no ambiguity as to what you're getting. The abstract or esoteric works for books that are looking to win awards, but is far less useful to other work that requires an audience to understand what is being offered so they can determine if they want to watch it. Within that rubric, creators are generally limited in how to describe any film or show; as much as we wish our vocabulary was more expansive, we generally confine ourselves to a few terms to describe certain ideas and concepts, and so it becomes hard for any creator to claim ownership over those terms.

Now more than ever we are made aware of our reliance upon Amazon in providing us with what we want and need, and for the duration of our current crisis questions about wages and hours for warehouse workers or the sheer dominance of the online retailer and whether that's good for anybody but Amazon become secondary to the urgent demand to get things without having to leave our homes. Seamless ordering and touchless delivery are vital at the moment, and Amazon has perfected the process of letting people order just about anything over the past decade. Who's actually providing those goods is another question, and it's at the center of a recent trademark case.

Given that the current moment we're living through, in which the coronavirus dominates every aspect of our lives, has been both recent and sudden and also seemingly eternal, it's both shocking and not at all surprising to see the amount of COVID-19 -related malfeasance and opportunism that has been unearthed. Bad actors are to be expected, even in a crisis (or perhaps especially in a crisis) but the speed with which the trademark applicants and patent trolls have made their plays would be impressive were it not so depressing.

It's become commonplace for big companies to target smaller businesses with trademark or copyright complaints over what could be termed marginal cases, if we're being generous. It's easy enough for the big companies to do — most have the budget for considerable in-house or outside counsel to pursue such cases, and there's no penalty for their aggressiveness; the worst that can happen is that they lose the case, at which point things return to the status quo ante.

Because there's nothing so bad that it can't be made worse by profoundly flawed human nature and no crisis can go unexploited, we submit another chapter in the growing volume of people looking to get ahead while the world plunges into panic.

It's inevitable that artistic works of art reference other works, particularly in our present nostalgia-fueled moments. Usually it's just an homage, but more and more you see things directly referenced, things that evoke a time and place and experience in our lives. And usually it's fine, from a legal perspective; most studios and creators are smart enough to know what they need to license, or the rules regarding fair use. But what happens when a work is built entirely around the precept of another property?

A fair bit of branding is trying to carve out your own space in the marketplace wheels still hewing close enough to the general themes of the industry to be identified as being of the same ilk. It's maybe not the perfect example, but the one front of mind to me is Dr. Thunder, the soda you see sold at Wal-Mart that's clearly meant to evoke Dr. Pepper. You know what you're getting when you buy Dr. Thunder — something similar in taste to Dr. Pepper — but it's not so close in name as to be actionable. Wal-Mart's version is evocative without being entirely derivative.

It's easy to wonder, given how relatively easy it is to search the respective databases containing registered trademarks, why anyone would thus infringe upon those marks given that they could or should know the error of their ways. One view is that it's a simple oversight on the part of the offender, an honest mistake, a view that is both accurate and somewhat naive at once. The other interpretation is that there is malice aforethought, that the perpetrator intended to infringe upon the mark because there was gain to be had for them, which is also true and also cynical. Whatever the reason, there is profit to be had in violating someone else's trademark, otherwise it wouldn't happen. But the Supreme Court might be looking to change that in the near future.

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.