The Traklight Blog

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.  

One of the benefits, one might suppose, of being among the most famous people on the planet is that relatively few people are unaware of important facts about you. It's fair to say that LeBron James ranks among those people, as his mega-stardom has made him known and recognizable the world over, even in places not enraptured with the game of basketball, and among those who don't know the sport at all and would struggle to name another player. His brand is ubiquitous, to use marketing parlance, to the point that it's hard to imagine anyone might be unaware of it.

Few things sever any lingering connections to your childhood like the disillusionment with those things you once held in great esteem at that age. It's perhaps the root of much cynicism that people and organizations that ostensibly exist to support and nurture young people are eventually discovered to be flawed in ways great and small, and perhaps no organization embodies this more than the Boy Scouts of America. Once though of as a body that could instill positive values in young people, BSA has fallen far from that perch in the light of recent scandals, with the most damning being tens of thousands of claims of sexual abuse that came to light in recent bankruptcy filings.

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.