The Traklight Blog

If you’re a company as large as Disney, with as much ownership over wide swaths of TV and cinema and other media as they now possess, you’re going to have some fairly frequent IP run-ins. The most recent case making news was the lawsuit brought against the estates of comic creators seeking to prevent them from canceling the copyright on Marvel characters that feature prominently in both current iterations of the comic books as well as the Marvel Cinematic Universe. It’s unpleasant business, but not altogether surprising; every company is going to seek to protect its interest, and every family wants to see their relative’s legacy preserved and properly compensated. 

It’s been a while since the last high profile case of trademark bullying, but like the bullies most of us encountered in the schoolyard, absence doesn’t mean they’ve departed the scene; rather, they’re lying in wait for the next opportune moment, or the next small business that can’t afford to push back against the rather absurd assertions made by a global brand about how their business will be damaged by a shop with a handful of employees and a customer base that doesn’t stretch beyond the county line. 

We’re in the heart of college football season at the moment, which means everything or nothing to you depending upon where you grew up. If you’re part of the former grouping, you understand just how important Saturdays in fall are to everyone around you, how the fortunes of the college you attended or just support intertwine with your own, to the point that a few dozen college kids you’ve never met losing a football game that ultimately doesn’t matter serves to ruin your day. Being a fan of that school’s teams becomes as much a part of your identity as being a resident of the state itself, and woe betide anyone who should run afoul of the that most beloved institution, even the actual state government.  

The saga of the Cleveland baseball team name change was supposed to be a counterpoint to the situation that unfolded with Washington’s football team; whereas the latter was a crushed process, Cleveland seemingly gave themselves time to do the work to find the right name, which was presumably one that both appeased fans and cleared the hurdle of IP issues that has seemingly stymied the erstwhile Football Team. 

Given how competitive various industries and markets can be and how much money is often at stake, it’s not surprising to see similar products or innovations arrive concurrently. It’s not necessarily nefarious for different parties to arrive at the same idea, particularly a good one that fills a hole in a market or provides an obvious improvement on an existing item. Sometimes whatever dispute arises is not in the realm of the item itself, but in the names that companies arrive upon for these features or products, even if they’re not particularly inspired. 

It’s easy to start thinking of trademarks as instruments to profit off of, or to be used in legal battles as either shield or cudgel, but it’s occasionally worth remembering their more basic functions and how those serve businesses in very real and tangible ways. For example, you create a logo to identify your business to identify your company and products to consumers, and in time that logo comes to mean something more than just an image. You build equity in a brand, and in time trust from consumers, and in trademarking that logo you’re protecting not only yourself and your business, you’re also protecting consumers from potential knockoffs that look like what you sell but aren’t to the quality they’ve come to expect. 

It’s hard enough for any small or midsize business to take on corporations in any sort of intellectual property case in the best of circumstances, with evidence and the law ostensibly on their side. The court systems are overworked and the process is by design deliberative, which is another way of saying slow, and both of those facts work to the benefit of the bigger business that can afford to let things play out without any significant diversion of energy or resources. Occasionally, with enough perseverance and perhaps a bit of fortune, individuals and small businesses come out on top, but that requires them to get everything right. 

It’s not uncommon to see corporations go after fans who are engaged in infringement of that company’s intellectual property, and it’s easy to understand why even if you don’t always agree: every business wants full control over their IP and how it’s used and sold, and these fans are taking money out of the pockets of said business or using the IP in a way that the company doesn’t agree with, or often both. And it’s usually the case that these corporations prevail; after all, they have both the legal rights to that IP as well as a legal team to see out these cases, whereas individuals are probably put in some degree of financial distress just to afford a single lawyer for their case. Which raises an interesting question: what exactly are these corporations getting out of the lawsuits they pursue against individuals?

Hard as it may be to believe now, the conglomeration known as Disney has its origins as an animation studio trying to make its way in the early days of Hollywood. Harder still to believe, given that Disney now seems to own much of the existing popular intellectual property that exists, was that the nascent studio owes no small amount of its success and survival to IP that it didn’t own. Sure, Mickey Mouse was a Walt Disney original, but Snow White and the Seven Dwarves, the film that stands as the company’s first crowning achievement, comes from a German fairy tale that the Brothers Grimm put to paper. Cinderella similarly has its origins as a folk story long before Disney decided to make it an animated film. 

The past few years has seen an explosion of products that are new variations on old staples. Take milk, for instance. For most of my life milk was synonymous with cow’s milk, and really that was the only milk you could get. Goat’s milk garnered the occasional mention, but only as something that you drank on a farm or out in the country where options were limited. 

One of the bedrock principles of our capitalist arrangement is that people have the ability to use what ability they have to make a buck for themselves, however that may be. We can debate about how that plays out in reality across multiple levels of society, but for the purposes of this article, let’s accept that as more or less true. 

A point often made, and worth repeating ad nauseum, is that it’s crucial to get your intellectual property affairs in order early, and to do so in a thorough, comprehensive manner. Scrambling after the fact to try and get whatever trademarks or copyrights or patents you need isn’t a good process, and rarely leads to good results. It’s all a bit reminiscent of doing an end-of-term paper in the two or three days before it was due and hoping for a generous grading curve from the professor. (Not, uh, that I have any experience with such things.)

An important tip frequently made in guides to starting your own business is that it’s smart to land on the right name the first time, because it can be hard to change. There are of course branding questions, and concerns about losing the equity that you may have built, but there is an equally salient point about choosing a name that you can use for intellectual property purposes because, again, it’s hard to make changes. 

Part of the problem with being an artist that is both world famous and also anonymous (or perhaps more accurately, pseudonymous) is that it presents a real challenge in protecting your work, should you choose to do so. Or at least one assumes; I am not a world famous anything, so I can’t speak definitively on the topic. But it seems to be a problem for Banksy, who has run into some trademark issues in the past that are undoubtedly harder to contest when you’re exerting so much effort to maintain a hidden identity. 

Anyone who has been in a grocery store is well aware of what are, for lack of a better term, knock-off or generic versions of more widely recognizable products. Indeed, as a kid there was few greater disappointments than asking your parents for a snack or sugary cereal from the store, only to have them return with the lesser version that they picked up because it was cheaper, because your parents had to think about things like budgets and not solely about snacks or the day’s Nickelodeon lineup. Brand names matter, is the point, and they matter a lot when it comes to candy, at least when you’re in the target demographic its makers are appealing to.

Perhaps the best kind of IP story reads like a Mad Libs, with disparate entities who may have otherwise never interacted now thrown together to fight over a trademark or copyright filing or alleged infringement. Take something as mundane as, say, tires: a hypothetical story about Goodyear and Yokohama in some sort of scuffle might be interesting if you choose to dive into it, but there’s a far greater chance it’s written off as tire companies fighting over tire things like types of rubber or whatever they fight over. 

There is a future in which the text of the law fails to mean much of anything to those who wish to avail themselves of it, and instead it becomes merely a tool for stopping the things one simply doesn’t like. The latter pairs well with a mindset that the law is meant to protect you, and thus bind those who find themselves in opposition to you. In the space of intellectual property, it would mean going after any brand that used a logo or branding deemed too close to your own, without much time to sift through the relative merits of your case before potentially embarrassing yourself.

It’s certainly not unusual to see businesses, particularly large businesses involved with a lot of different products, to be on both sides of trademark or copyright issues, but typically there’s something of an interval between their times as the offender and the offended. Credit, then, to Nike for responding to the needs of our fast-paced world and cutting down that intervening period to something like mere hours. 

It’s a generally good rule to be cautious of what images you use for your business on the grounds of copyright infringement — no company wants to be on the receiving end of a C&D or even a lawsuit, if things take that turn. It should be an ironclad one to steer absolutely clear when dealing with images of brands or athletes or celebrities or generally anyone who has the resources to take you on and the willingness - eagerness, even - to do so. 

In business as in life, friends and partners can grow apart over time as one or both parties change. And in both instances, success can play no small part in shifting the nature of those relationships, particularly if one party experiences far more of it than the other.