There has always been an interesting dynamic with boundaries in how they serve not only a primary function in providing definition to a particular state, but inevitably by doing so they also define the state for the reverse, captured in the familiar adage, ‘boundaries are made to be broken.’ if there is ever a case where this cannot be less true, it is with trademarks.
Several years ago, when I was in Seattle, WA, there was a ice creamery on ‘the Ave’–a street in front of the University of Washington. It was a local store that mixed ice cream with ingredients of your choice on a cold, marble slab. None of us had ever heard of ‘Cold Stone Creamery’–which suspiciously sounded like they did the same thing as the then named ‘Marble Top.’ As far as we were concerned, Marble Top was the real deal. Then a few years back, it went through several name changes over the span of a few months: Marble Top, Cold Stone, and Mix on the Ave–unless it’s changed again. Was the store bought out by another franchise? Was it change of management?–everything seemed the same: the comfy, if somewhat worn couches were still in their corners, the flavors, the staff, what was going on? What we later found out was that our favorite ice creamery’s identity crisis was due to trademark issues. Whether or not the owners copied Cold Stone Creamery first, or developed the concept of their store independently, it was clear that there was only room for one marble-top-mixing ice creamery in town.
And this is how simple it used to be. As outlined in William Fisher’s Overview of Trademark Law, trademarks are pretty well defined and straightforward. On one hand, they are simple governing guidelines that define identity, and recognize the value of imagery, visual connection and identification. On the other hand, the Trademark Law also takes into account how these identities operate within the public sphere, so that, for instance, a generic mark that is extremely useful for identification cannot be controlled by a single manufacturer. What these laws have yet to fully address is what to do when identity, be it expressed as a trademark or a logo, is taken out of its traditional medium and thrust into a new context. In Steve Lohr’s A New Battle is Beginning in Branding for the Web (Link), Lohr eludes to new areas of conflict, namely how trademark owners will be faced with wrestling how their identity can exist on new technologies. He touches on, for instance, the purchase of trademarks as keywords for Internet searches. But equally important he describes an evolutionary departure from traditional forms of branding which has evolved to reflect our time. If you think of products and services that we grew up with, we could easily make out m&m’s, for instance, or a gas station.
Internationally recognized trademarks and logos.
Towards the end of Lohr’s article, he describes how technology has also had its own effect in the United States Patent Office. He observes that in prior times, trademarked images were grouped by visual categories, as “‘grotesque humans’ (the Pillsbury doughboy) and ‘human body parts’ (the Yellow Pages’ walking fingers).” His point underscores the shift that has taken place for companies to branch from the traditional practice of branding, which was to create an identity that indicates a singe entity. Branding now has evolved to include, sub-branding to reflect a suite or a family of products or services that fall under one umbrella, a prime example being Apple’s family of products.
Apple’s original logo
Apple’s growing family of products
The interesting aspect for me personally as a designer is to see not only how branding is effected by the changing medium and needs of our time, but it is also to see how trademarks take a life of their own and exist in a new context. In truth, it is only because we have had a foundation of trademark laws that make pieces such as the following short film, Logorama, take on the meaning that it does.
As the definition of branding continues to expand, trademark laws will inevitably need to be expounded and redefine how identification operate in the ever-evolving technological and competitive landscape.
Yale Law Tech 
