The Traklight Blog

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.

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.