Saturday, November 3, 2007

A Quick One about Intellectual Property

I know several intellectual property lawyers, so let me apologize to them in advance. Most of this isn’t their fault.

I once worked for a fellow who was all gung ho about IP, mostly patents and trademarks. Patents are tricky, and so, to a certain extent are trademarks, but there are a few simple things about trademarks. The most important thing about trademarks is that trademarks are usually lost through abandonment. This should be distinguished from “failure to protect.” By “abandonment” I mean that the trademark owner simply ceases using it, fails to continue to file the paperwork, and so forth. It’s basically someone saying “Hey, this trademark is completely worthless; I’m not putting any effort into it at all.” Often, the owner was some corporate entity that simply ceased to exist.

On the other hand, there have been some famous cases where trademarks went generic. Usually, that happened when there was no good alternative name. The yo-yo was originally the “Yo-Yo Brand Return Type Bandolero Top” which kinda tells the whole story, doesn’t it?

The thing is, my intellectual property-minded boss was full of stories about all the trademarks that had been lost because the trademark owner failed to file a ton of lawsuits to protect the brand. I checked the trademarks he named; every single one of them is till in effect. One of them was particularly interesting. In the early 1980s, the FTC petitioned to have Formica declared generic. This petition failed when Congress explicitly defunded the FTC group handling the case. Hmm.

Since then, we’ve had the “Trademark Dilution Act,” which was expressly written not to protect current trademarks on specific products, like Coke, the beverage, but to strengthen “super-trademarks” on things like Coke, the knapsack. And isn’t that interesting?

So on the one hand, you have businessmen paying lawyers to write “cease and desist” letters to anyone using the trademark in any way that doesn’t stand up and shout “Yes! I acknowledge your grand and awesome power over these letters arranged in this way!” then, on the other hand, you have congresscritters writing up laws to make that grand and awesome power even grander and awesomer.

Howard Hughes once trademarked his own name, in an attempt to keep books from being written about him. It didn’t work then.

It might now.

[No trademark symbols were harmed in the writing of this essay].


black dog barking said...

"Ownership" of "intellectual" "property" is demonstrably available to anyone with the minimum circuitry and enough inclination to "understand" said IP. This add-on system of "registered" "ownership" looks to be our contribution to the venerable tradition of noblesse oblige, at least for ironic usages.

Coke™'s secret formula for sugar water and derivative works was once a major pillar of Warren Buffett's investment company Berkshire Hathaway, single share price $132,000+ earlier this week. Given Buffett's well known strategy of buy and hold, probably still is.

James Killus said...

I always try to remind myself that "intellectual property" isn't really a thing so much as a slogan, and lumping copyrights, patents, and trademarks together is pernicious.

Trademarks in the more limited sense is a legal reification of the relationship between a buyer and a seller. Trademark violation is akin to fraid, as it denotes a seller misrepresenting himself as someone else.

Your first paragraph is applicable to both copyrights and patents, in different ways. Understanding a novel, for example, requires at a minimum the ability to read, so such copyrights are dependent on literacy. Patents are a different kettle of fish. As nearly as I can tell, patents are primarily of use these days in supplying ammunition for corporate warfare. Whether such warfare is good or bad for the rest of us is a matter that might be argued in many ways.