The Traklight Blog

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. 

Trademarks are meant to protect a business’ particular brand, its unique identity and creativity that it has carved out for itself in the landscape. The best trademarks are the ones immediately evocative of a particular product or pitch, rendered in the space in your brain previously reserved for childhood memories or something else not pervaded by capitalism. Whatever you may think of branding, there is something to be said for it when done correctly and cleverly, and even the most sceptical wouldn’t begrudge it the legal protection it has earned. 

I’m typically loath to revisit stories too many times, but occasionally you have to see something out to its end, particularly if its end is particularly ignominious. 

If you’re not up on shoe culture, stories about old and new kicks going for occasionally eye-watering prices can boggle the mind. Regardless of how you feel about it, though, there is a lot of money in the buying and selling of collectible shoes, and notably, a lot of that money is made on secondary markets. Given that shoe companies are doing alright as it is, they’re probably ok (for now) getting only a portion of that market as opposed to the whole thing. But someone striking out on their own and using their trademarks? That’s clearly going to be a big no-no.

For those fortunate enough to go to college (or unfortunate, depending on your reaction to that first student loan bill) picking the institution to attend is a big and thrilling step in your journey into adulthood. For many it’s the first time they’ll be living independently of their parents, sometimes hundreds or even thousands of miles away from home. And a big part of choosing a school is the campus tour: your opportunity to get a feel for the feel, the environs of your potential home for the next four(ish) years. 

Any remaining pretense the NCAA may have tried to maintain about their supposedly fair and equitable treatment when it comes to men’s and women’s athletics went out the window in the early days of this year’s tournament, when it was revealed that the men’s teams were granted a full array of workout equipment and the women’s teams...well, there are better setups in hotel gyms. The NCAA at least had the decency to not simply lie to everyone’s faces after the inevitable backlash, admitting that the women’s accommodations were lesser and eventually rectifying the situation at the risk of further public embarrassment at the hands of private companies that offered to provide the missing equipment. 

It’s probably too much to hope that those companies that have adopted trademark bullying as a course of action to change their stripes and take a more measured approach, but it is nevertheless disappointing and disheartening to see every new instance wherein they take aim at an invariably small business over some imaginary offense. For the bullying company that case is but one mark on a ledger or one chapter in an ongoing story, but for those small businesses these lawsuits can be hugely damaging, if not an existential threat.

If this March seems a little different than those in years past, well, that’s mostly the pandemic we’re hopefully nearing the end of. But it’s also different in that this year’s edition of the NCAA’s college basketball tournament is to be experienced largely alone, shorn of the communal experience that has made it the institution that it is. The tournament is both big business for the NCAA and something of a drain on business for others, costing companies billions in lost productivity over the course of the month. And on the former point, the NCAA is vigilant in protecting that business against even the notion that someone else might make a buck without their say-so. 

A common refrain in this space is that intellectual property law is meant to protect, both in deterring would-be violators from messing with your IP and in instances where defending means taking an offensive approach against infringers. It’s a measure of power, and for small businesses, it can be the most considerable power afforded in those earliest days before there’s a customer or client to speak of. 

If you’re any sort of fan of college football, or at least aware of the product, you’ve undoubtedly noticed the proliferation of bowl games and associated sponsorship and branding around it. It’s that association with such august businesses as TaxSlayer, AutoZone and Cheez-It that give lie to the NCAA’s purported notion that the endeavor of college football itself is about shaping young men or the spirit of competition or whatever they put forth, and is not in fact a nakedly capitalistic enterprise meant to bring in millions to each respective university and billions in aggregate. Which is fine, by the way — colleges should just be honest about the pursuit, and pay the players like the income earners they are. 

The nature of celebrity would seem to make someone a target for intellectual property lawsuits, as noted in this space over the years, but that reading is a bit reductive, and elides the responsibility that the celebrity in question might bear. Sure, there may be cases where individuals or entities are looking for an easy payday, but the intoxicating mix of fame and power that accompany celebrity might make those people more prone to stepping on the rights of those of us living and working in the world they long ago left behind. 

In what speaks to the relative strangeness of our times, speculation on new names for sports teams via trademark filing observations is now something of a pastime for sports fans, adjacent to the pastime itself. It happened with the now-Football Team of Washington, and is still happening as the team has yet to settle on a new long-term name: intrepid reporters dive into the USPTO database to uncover what trademarks the team’s ownership group holds and tries to suss out the most likely candidate for the new moniker. It’s as yet proved unfruitful for Washington fans, who will have to wait longer yet to learn what they will scream at their team as they squander yet another game.  

Where exists the line between homage and infringement? It’s perhaps a too subtle a distinction at items, and one likely at the heart of many an intellectual property suit over the years. The winking nod to another work or product can be seen as a joke, or would be, if most corporations had a sense of humor when it comes to their IP. Alas, they do not, and the court system and our IP news is all the busier for it. 

There is perhaps nothing sadder and more telling of the innate flaws of human nature than the inevitable fight that often takes place upon the death of a popular and prolific artist. We’ve all seen stories of the genre: family is pit against record label over the rights to the now-deceased artist’s work, or worse still, family is given over to internecine fighting over those same rights. We’d like to think our own families would do better, but then again none of us can imagine either the talent involved in creating such work or the money and privilege now accessible to those in the artist’s orbit. We’re all good until such a point as we’re bad, in short.