Friday, July 15, 2011

The Paradox of Trademark

Much of this tutorial has concerned intellectual property issues as they relate to copyright. Copyright is, in many ways, the form of intellectual property that we discuss the most. After all, we live in a very connected media culture, so creative media is really part of our environment. Nevertheless, no discussion of intellectual property, and certainly no tutorial series on intellectual property, would be complete without at least some detailed discussion of the other major forms, namely patent, trademark, and trade secret. As such, I'll finish this series with at least one installment on each of these, beginning with trademark.

Again, we discuss copyright perhaps more often than any other form of intellectual property, but trademark may well saturate our environment even more thoroughly than copyright. We just don't seem to discuss it quite as often, and in some ways trademark isn't as fascinating as debates about file-sharing, fair use, or derivative works. Nevertheless, thanks to the 20th century arising of sophisticated marketing strategies, we are very much assaulted by brands. Trademark, of course, is the means by which those brand names, logos, mascots, and slogans are protected by law.

Trademark can be understood to serve two functions. On the one hand, trademark is a form of consumer protection against fraud. By registering its trademark, a firm gains assurance that it is the only firm legally able to use its registered mark for business purposes. Consumers are then assured that a given brand name or logo always denotes a product from a particular firm. If another firm attempts to use the registered mark in hopes of confusing consumers and capitalizing on the success of another firm, the trademark holder can sue for trademark infringement. On the other hand, trademarks also provide an incentive for firms to maintain consistency and quality of their products. Since a given mark is always associated with the same firm, it is in the firm's interest to ensure that consumers have a positive association with the mark. If the quality of the firms products is inconsistent or unacceptable, consumers know that they can avoid the firm by avoiding the firm's mark. Therefore, it is in the firm's interest to release high quality products and convince consumers that their mark is an indicator of good quality, ideal price, usw.

I suppose it then goes without saying that trademark is intimately connected with advertising. To cultivate positive associations between mark and product, firms invest heavily in marketing their brand. At base, advertising makes consumers aware of a brand and its associated product or products, but advertising is also the front line for creating positive associations with the mark. Firms need to do more than simply promote their brand. They also need to make sure that their brand is closely associated with their product, potentially so much so that consumers cannot think about the product without thinking about the brand. Of course, the strategies for realizing that goal also undermine trademark itself. If a firm is successful at making its mark “a household name,” the trademark risks entering the language as a generic description of the product. Bayer provides the most famous historical example in its loss of the trademark for aspirin.

When Bayer came on the scene, there was no way of patenting the extract of willowbark. It was a chemical found in nature, and most chemists sold willowbark extract as a pain reliever. Bayer did not have an innovative process for extraction, so it could not patent any process associated with the product. Nevertheless, it trademarked “aspirin” and began to sell its willowbark extract under that name. Once consumers got used to associating “aspirin” with willowbark extract, “aspirin” became a generic. Consumers did not ask for “willowbark extract, aspirin-brand.” Instead, they simply wanted aspirin. The term became a generic description, and as a result, Bayer lost their trademark.

Here, we have the essential paradox of trademark. A successful trademark is inevitably associated with the product, and that associated is built and sustained by advertising. Nevertheless, if the mark becomes so associated with the product that they really are one and the same to the consumer, the trademark is no longer valid. To avoid following Bayer's example, firms take a litigious approach. If a firm attempts to control its mark by actively pursuing infringement cases, it can protect its mark while at the same time undermining it through aggressive advertising. The result is our current circumstance, where one might struggle to recall that a Kleenex is actually a Kleenex-brand facial tissue, or that only Johnson and Johnson makes Band-Aid adhesive bandages.

Trademark also invites some problems with censorship. Since the mark is supposed to be associated with one and only firm, so any other use of the trademark may be an infringement. As such, if an artist depicts a ghetto cityscape with a certain recognizable fast food logo towering majestically amids the slum, the owner of the logo might decide that the depiction hurts or dilutes the brand and sue for infringement. For these reasons, as much as Disney has worked to keep Mickey Mouse in copyright, Mickey's place as Disney's mascot, and his face on so much merchandise, ensures that using the image of Mickey for the purpose of criticism of Disney will be problematic even if Steamboat Willie finally lapses into the public domain. Disney can claim that any depiction of their signature rodent dilutes the brand because Mickey is such a readily recognizable symbol of the media giant. One should note that such arguments are readily available to Disney, especially in the wake of non-conventional trademarks, such as UPS's trademark on their signature shade of brown. The firm was able to demonstrate that consumers can distinguish “UPS brown” from other shades of brown, thereby establishing that their shade of brown is associated with their business. Disney clearly has an easier argument to make with respect to the mouse.

In such arguments, we once again run into the paradox of trademark (or perhaps the paradox of advertising). A successful trademark is one that becomes a “household name,” something that everyone recognizes and knows, something that becomes part of the informational environment. No firm can do this effectively without making itself a part of the cultural environment, and as such, the firm's symbols also become part of the cultural environment. At the same time, the firm must worry about diluting its trademark, and protecting it (and itself) from criticism. The best thing that can happen to a firm is to have its trademark replace any other description of its products. The worst thing that can happen to a firm is to have its trademark become a common synonym for something undesirable, useless, disgusting, or evil. Unfortunately, to accomplish the one, a firm must risk the other.