Are you a Ruth Bader Ginsburg, a Clarence Thomas or an Elena Kagan?? Now you can rep your favorite Supreme Court Justice with a JUSTICE SIGNATURE mug. This week’s topic of Trademarks and Brands on the internet got me interested in names— more specifically signatures— and their potential for use in a visual identity. Signatures are generally not trademark-able, and the visual language used on supreme court documents is in the public domain, as it was created by government employees. Yalies should definitely show some Sonia Sotomayor pride by drinking their morning coffee from a Justice Signature mug, featuring Justice Sotomayor’s *real* signature.
Perhaps one of the most infamous trademark trolls is Larry Stoller. As part of the new line of “intellectual property entrepreneurs”, Stoller’s entire business strategy was to amass a portfolio of ambiguous trademarks he would then use to pursue and threaten as many offenders as possible. Below is a sample of just some of the trademarks Stoller registered.
Stoller is most famously known for aggressively pursuing his trademark of the word “stealth”. In 2005 he entered a legal battle with Sony’s Columbia Pictures after their release of the summer movie Stealth. Stoller sent a cease and desist letter to Sony claiming to have registered and owned the rights to the movie title and insisted that the title of the movie be changed. While he wasn’t successful with this particular venture, other big companies such as Kmart, JVC, and Panasonic have chosen to remove the term stealth from certain portions of their websites and products rather than deal with Stoller at all. Regardless of whether or not these companies feel as though they have a legitimate case, it’s simply easier to settle as many issues as possible outside of course. As one Panasonic lawyer stated “if you can solve problems without going to court, you’re better off”. If even huge corporations aren’t always willing to fight for their actual right’s, how much more can we expect of the smaller companies and start ups who receive a threatening cease and desist order from people like Stoller. This is clearly not in the service of the consumer.
Once again we have another example of an area of IP law that is being abused by trolls for pure economic benefit. Trademark trolls, like patent trolls, are abusing a system meant to protect the consumer and stimulate innovation. While Stoller wasn’t very successful in his ventures (he was recently stripped of all his trademarks and banned from making any further claims) this is exactly the kind of practice that companies like Intellectual Ventures are turning into a viable industry. The end consumer needs to be put back at the forefront of lawmaking to ensure that practices such as these do not continue.
The Trademark Dilution Revision Act of 2006 (TDRA) was signed in 2006 by President Bush as an amendment to the Federal Trademark Dilution Act of 1995; it further clarified the standard proof trademark owners must meet in order to claim dilution of the famous TM, how use by another can “dilute” a trademark, and finally, it made it easier for owners to prove dilution.
Specifically, the TDRA defined a trademark to be “famous” if it is “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner.” The owner of such a famous TM can thus prevent its use by others that can be proven to be “diluting” the mark. Diluting, under the TDRA, occurs when the famous mark is “blurred” or “tarnished” as a result of an “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.” Essentially, with this Act, it was made clear that owners can stop potential dilution without showing that the current diluting use is actually causing harm.
Recently, trademark parodies have been at the forefront of cases involving the TDRA. In my opinion, despite further specifying the original Federal Trademark Dilution Act, courts remain conflicted and inconsistent when it comes to interpreting the TDRA—especially when it comes to trademark parodies which, naturally, aim to reference prominent trademarks.
For example, with the Louis Vuitton Malletier, S.A. v. Haute Diggity Dog (4th circuit, 2007) case, Louis Vuitton, a manufacturer of high end luxury luggage, leather products, and other accessories, claimed trademark infringement and dilution against Haute Diggity Dog because of its Chewy Vuiton plush dog toys that were modeled after the LV handbag. Here, despite acknowledging that Chewy Vuiton had indeed based their design and name off of Louis Vuitton, the Court went on to find that Haute Diggity Dog was actually engaged in a successful parody, and, as intended, it would be perceived as such:
“Finally, the juxtaposition of the similar and dissimilar—the irreverent representation and the idealized image of an LVM handbag—immediately conveys a joking and amusing parody. The furry little ‘Chewy Vuiton’ imitation, as something to be chewed by a dog, pokes fun at the elegance and expensiveness of a LOUIS VUITTON handbag, which must not be chewed by a dog… The satire is unmistakable. The dog toy is a comment on the rich and famous, on the LOUIS VUITTON name and related marks, and on conspicuous consumption in general.”
Similarly, with the Charbucks case (Starbucks Corp. v. Wolfe’s Borough Coffee Inc.), the Second Circuit found there was no likelihood of dilution—even though Starbucks claimed that Charbucks for coffee products was likely to blur the distinctiveness and/or harm Starbucks’ reputation. This decision was heavily based on the TDRA. Interestingly, when weighing the degree of similarity, the court stated that the marks be substantially similar (and thus created a new requirement) in order to attain protection against dilution via blurring. Moreover, in terms of the “intent to create an association,” the court accounted for bad faith when it came to determining whether there was an actual intention behind unlawfully associating with a well-known trademark. At the end of day, despite Starbucks’ appeal Charbucks wasn’t found to be likely of diluting the Starbucks TM.
With Hershey Co. v. Art Van Furniture, Inc., however, Michigan’s largest furniture retailer, Art Van began an online campaign where visitors could vote for their favorite couch design—one of which happened to be a brown sofa, emerging from a wrapper, with “ART VAN” centered across. Hershey decided to file a lawsuit claiming that it’s chocolate bar packaging was being diluted and infringed upon. Art Van, of course, argued that this was merely a parody and its amusing nature would therefore diffuse any risk of it being mistaken as a sponsorship, for example. Fortunately for famous TM owners here, the district court rejected the parody defense (differing it from Chewy Vuiton mentioned above) by stating that Michigan retailer’s design was “neither similar nor different enough to convey a satirical message…it’s not biting.” Thus, playing on someone else’s trademark as a parody is by no means a guaranteed defense.
As of November 2010, I think Facebook vs. Lamebook is one case that will be particularly interesting to follow given past cases where parodies have been established as defense. Lamebook.com is a parody compendium of funny facebook content that recently decided to sue Facebook.com in the federal district court of Western Texas, after seeking 1st amendment protections, so that Facebook couldn’t go ahead and file against them first. Facebook, however, ignored this and filed an infringement and dilution suit in Northern California. Only time will tell how the parody defense will play out here—and if privacy issues, which haven’t been addressed by either side as of yet, are raised (even though Lamebook obscures identifying information).
Charlie Sheen has just filed for trademark protection on 22 catchphrases including:
“Duh, winning” – “Vatican Assassin” – “Tiger Blood” – “Rock Star from Mars” – “Cobra Venom” – “Adonis DNA” – “Sober Valley Village” – “Sheen’s Goddesses” – “I’m not bipolar, I’m bi-winning.” – “My Violent Torpedo of Truth”
…to name a few. I guess not that he’s not getting his 1.8 million an episode from Two and a Half Men, he needs some extra cash? Until researching Sheen’s mission to trademark his phrases, I was unaware of how many other people, show, etc. have trademarked some pretty obvious statements. Donald Trump trademarked “you’re fired.” Paris Hilton, “that’s hot.” Emeril Lagasse, “bam!” It seems strange that by simply repeating a phrase publically, there is a basis for ownership.
It seems that this need to trademark nearly everything has extended beyond traditionally trademarked materials. For example, T-Mobile trademarked the color magenta. In this case, the company “has been the owner of the color mark No. 395 52 630 ‘magenta’ since September 12, 2000 which was registered on the basis of a proven secondary meaning (for goods and services in the field of telecommunications.)” I have two problems with this:
1. When I see a color, I do not associate it with a corporation, nor do I think it’s “off-limits.” And when did colors ever prove to have secondary meaning?
2. Doesn’t the field of telecommunications encompass nearly all media? Internet, telephone, television, radio, cable…
This made me wonder, should trademark have a “novel and nonobvious” clause as well? If even patent provisions have become relatively lax on their nonobvious clause, what’s next for trademark law? While this seems to make much more sense, upon further consideration, I realized that it’s unlikely to actually work when put into practice. Trademark covers such a vast area of material that requiring novelty and nonobviousness would not serve the same purpose as patent law does (although trademarking colors still seems kind of abusive).
From a governmental point of view, laws like this serve to protect the consumer from confusion in the market and buying inferior products by mistake. Yet, some individuals argue that trademark owners should lose their right to sue infringers entirely, on the basis that consumers know what they are getting themselves into when they are buying a fraudulent product. This school of thought assumes a certain degree of intelligence among consumers, stating that they would be able to distinguish between the real and the fake.
But, I have doubts. I’ve found that most vendors of “knock-off” products are seeking to make a profit (just as the legitimate companies are) by scaling up the price of knock-off products to not much less than retail of an authentic one. I know I have difficulty distinguishing real items from fake ones, so what’s stopping replica sellers from charging the same price as the authentic?
Determining the nonobviousness is probably entirely too subjective to judge for trademarks. Even things that seem obvious – Apple for instance – are not necessarily obvious to its field. Apple is not obvious for computers, nor is Blackberry obvious for cellphones. Examining novelty is another obstacle. For example, take the Nike checkmark, or “swoosh.” That is not novel in a sense, but it’s become commonly associated with Nike.
The tension here is that even with something as simple as a checkmark, a company is forced to obtain a trademark to prevent millions of others from ripping off their design, which would result in enormous losses in revenues for the original company. People are certainly doing it now (watches, handbags, etc.), albeit illegally, but unless that mark was viably available, they could do it with impunity.
In cases such as these, I definitely see the benefits of trademark. Although recent trends of trademarking common phrases and even color are certainly pushing it, instituting a clause requiring novelty and nonobviousness, like that of patent law, appears to be too complicated and unjustified.
The rapid development of the Internet has enabled various new ways for sellers to connect to buyers and to expand their businesses past geographical barriers. But, as commerce advanced so did the forums for counterfeiting and infringement. Similar to the Google and Louis Vuitton trademark case, Tiffany v. eBay brings to light yet another instance of infringement via the Internet.
In this case, Tiffany’s asserted that eBay “actively advertised the availability of Tiffany merchandise” on their website, which is in no way an authorized vendor of the brand. The allegations against eBay included direct trademark infringement under federal and common law; contributory trademark infringement under the federal and common law; unfair competition under federal and common law; false advertising under the Lanham Act; trademark dilution under federal law; and contributory dilution.
The Court outright rejected Tiffany’s direct infringement claims, which I do agree is the least sound of the arguments, contending that eBay, and any other vendor, should be free to use “Tiffany” to accurately describe a jewelry that is, technically, from the Tiffany collection. To this, Tiffany rightfully argued that eBay should be held liable for the rampant sales of counterfeit Tiffany jewelry on their website. Because all Tiffany’s merchandise sold on the site is not counterfeit, and because eBay quickly takes down listings when Tiffany’s sends directed notes, the United States District Court for the Southern District of New York ruled in favor of eBay, stating that “the law is clear: it is the trademark owner’s burden to police its mark, and companies like eBay cannot be held liable for trademark infringement based solely on their generalized knowledge that trademark infringement might be occurring on their websites.”
Aside from direct trademark infringement charges, eBay should seemingly be held liable for contributory trademark infringement, trademark dilution and contributory dilution. The eBay platform cultivates a context catering to a variety of sellers, sometimes anonymous, which allows them to very easily and intentionally sell second-hand and counterfeit goods. The website knowingly makes it overly easy to do this. In this sense, eBay is enabling and facilitating trademark infringement and the charge of contributory trademark infringement seems applicable. In addition, sellers on eBay are peddling used or fake Tiffany’s jewelry. Tiffany is a considered a luxury brand, and it’s jewelry something not easily attainable by the general population. The company has spent time and resources to develop a high-end brand, and sellers on eBay undermine the brand and diminish value. In this way, eBay should be held liable for trademark dilution and contributory dilution.
The ruling in this case basically holds that, regardless of the fact that Tiffany and other luxury brand companies have invested enormous resources into developing their brand, they are nonetheless responsible for monitoring all activity and counterfeit activity pertaining to their brand. This extensive responsibility is unreasonable considering the scope of the Internet and marketplace websites such as eBay, and the ruling in this case reinforces the illicit and explicit exploitation of luxury brand companies via the Internet. Ebay should bear the burden of monitoring the activity on their website because it is just that, their website. In the interest of integrity and accountability as well as wanting to facilitate the exchange of quality goods, they should monitor the transactions taking place on their site and should screen the sellers.
If you visit Nissan.com you’ll wonder why you aren’t able to see, learn about, and purchase the newest models of Nissan automobiles. That’s because the website actually belongs to a small North Carolina based computer reseller and has been the centerpiece of a now decade-long trademark infringement case against a man who continues to claim that he has every right to use and maintain Nissan.com to promote and sell his products.
According to his website, as far back as 1980, when Nissan Automobile was actually Datsun, Uzi Nissan has been operating businesses under his surname. In 1991 he founded Nissan Computer Corporation to sell “computer hardware, computer maintenance, networking, computer training and other consulting services related to computers.” On June 4, 1994 he registered the domain name Nissan.com to promote his computer hardware and peripherals business and two years later he registered Nissan.net to use to promote his internet services business.
In December 1999 Nissan Motor filed a $10 million lawsuit against Nissan Computer claiming cyber-squatting, trademark infringement, and trademark dilution. What resulted was a decade-long legal battle which exposed just how far large companies are willing to go in order to obtain and protect a veritable web presence. According to Nissan Computer’s website, the first round of summary judgments led to rulings in favor of Nissan Computer on all claims with except for the dilution claim. This led Nissan Motor to file a second round of summary judgments with some interesting results. The court actually changed the date for judging the “fame” standard from 1991 to 1994 and then ruled that by 1994 Nissan Motor was indeed famous and that Nissan Computer had diluted its trademark.
The case continued to a final injunction which allowed Nissan Computer Corporation to maintain control of the domains Nissan.com and Nissan.net so long as it neither advertised nor mentioned/made disparaging comments about Nissan Motor. Nissan Motor then filed a series of appeals that ultimately resulted in the same judgment in favor of Nissan Computer Corporation
Probably the most interesting takeaway from this entire fiasco is the fact that the internet has grown so rapidly and so dramatically in the past decade and a half which has led large and moneyed organizations to pour resources into maintaining and protecting their web presences. While Nissan Computer Corporation’s claim to both Nissan.com and Nissan.net are very legitimate, Nissan Motor’s interest in both domains is so great that it is willing to pour vast amounts of legal resources into effectively bullying a small company into handing them over. Although the web is an open platform it operates within the same laws and constraints of society which can find interesting ways to favor those in power or with access to substantial resources…like trademark infringement lawsuits.
For a long long time, companies have been extremely uptight, pleading people not to promote the “genericide” of their trademark. Genericide occurs when a trademark becomes the colloquial or generic description for, or synonymous with, a general class of product or service. The trademark loses its “secondary meaning” loses its secondary meaning and such loss can be caused by turning a trademark into a verb.
Photoshop It
Skype Me
Facebooking
Tweet? (more on this later)
In the 1990s, Xerox spent thousands of dollars in a campaign to urge consumers to use “photocopy” rather than “xerox” documents. As an article in the New York Times says, “The fear was that if ‘to xerox something’ became another way of saying, ‘to photocopy something,’ the term would end up defining not what Xerox is (a company that makes a distinctive brand of copiers), but what Xerox’s products do (make photocopies). In the process, the difference between Xerox and its competitors would begin to melt away.”
But today in the digital age, the genericide of trademarks may not be such a bad thing. When your company’s name is used as a verb, it is partly a sign that “you’ve made it.” You are a dominant company in the marketplace and your influence is likely to spread. (Dictionary)
Even when I tried to use Bing as my primary search engine, I would have friends send me emails and run up to me telling me to “google” (v) a video or news article. Long behold, I was back on “Google” (n) 100% of the time.
“The risk of becoming generic is so low, and the benefits of being on the top of someone’s mind are so high,” says Rebecca Tushnet, an expert on trademark law at Georgetown University.
Nonetheless, some companies in this digital age are still concerned with genericide. In an effort to control its brand name, Twitter trademarked the term “tweet.” When users posts something on twitter they issue a “tweet.” By taking this action, Twitter has enhanced its control on the term “Twitter” and has provided a term users can use to describe what they do through Twitter’s services – “tweet.”
Personally, I understand the concerns of corporations and owners of trademarks. Nonetheless, having your trademark be used as a verb is actually a good sign for your company. Verbs are active. Verbs are precise. And sometimes, verbs are just catchy.
Trademark is my favorite component of intellectual property law. Both the conceptual framework and practical implementation have been successful. I am satisfied given the knowledge that when I walk into McDonald’s® I will get quality burgers at bargain price through the dollar-menu and when I go into Starbucks® I expect decent overpriced coffee supplemented by world-class service. Both companies have spent enormous amount of time and effort into developing the company image that they have today. Exclusive trademark protect both the businesses and the customers. Businesses can protect and enjoy the image that they have developed and customers can ensure that the products they are purchasing are ensured by a reliable trademark.
Apple is a perfect example of a company that has heavily invested in the image of its brand and all of its trademark products. For example, with the introduction of the Macintosh computer in 1984, the company spent about a million dollars to develop one of the most famous and influential Super Bowl advertisements in history to promote the Macintosh trademark:
It is clear that Apple’s marketing campaigns have created the company as it is today. The value of that bitten Macintosh apple logo is worth more than the market cap of many mid-size firms. I would argue that without such heavy investment into brand image, Apple cannot possibly sell its products at the prices they offer today.
The most notable feature of the Apple product line are that Apple ‘i’ products. Adding the ‘i’ before product name is one of the most phenomenal marketing endeavors. Apple currently holds 23 trademarks that follow this feature. The ‘i’ product line serves two important roles. The ‘i’ automatically signifies that the product is guaranteed to be of good value under the Apple name. In addition, Apple tends to add a generic name after the ‘i’, such as iTunes, iPhone, and iPhoto. This method helps consumers to easily identify the product functionality. In comparison, the Zune and the Android do not have names that indicate the products’ function. (The Zune is Microsoft MP3 player and the Android is a Google phone platform).
Now, the problem arises when Apple wants to introduce a new product line under the ‘i’ series when the name has already been taken! In fact, that has happened to two of Apple’s most important products: the iPhone and the iPad.
Steve Jobs announced release of the iPhone in January of 2007, however, the iPhone trademark was already owned by Cisco. Cisco bought a company called Infogear Technology, which had developed a product that combined web access and telephone called the iPhone in 2000. Shortly after Apple’s iPhone was announced, Cisco filed a trademark infringement lawsuit against Apple. Cisco claimed that the trademark lawsuit was a “minor skirmish that was not about money, but about interoperability.” The two companies soon reached an agreement in February that allowed both companies to use the iPhone name in exchange for interoperability between their security, consumer, and business communication products.
Cisco iPhone vs. Apple iPhone
A similar case of trademark overlap occurred to Apple’s recent announcement of the iPad. Despite the controversial name that resembles a product used by majority of the female population, the name was already registered by Fujitsu in 2003. Fujitsu’s iPad is a handheld scanner for retailers that has Wi-Fi, Bluetooth, and VoIP support. In this case, Fujitsu agreed to cede the trademark to Apple after an undisclosed agreement has been reached in March.
Fujitsu iPad vs. Apple iPad
The cases of iPhone and iPad shade light upon an interesting topic of dispute in trademark law. Strict interpretation of trademark law would have prevented Apple from taking on the trademark names iPhone and iPad, which would have damaged the company’s branding effort for past decades. Some would argue that Cisco and Fujitsu were more or less lucky to have owned the trademarks and have benefited handsomely from it. On one hand, the names iPhone and iPad were not very valuable before Apple decided to use those names. Neither Cisco nor Fujitsu made visible attempts to glorify their trademark. Cisco’s lawsuit and bid for interoperability and Fujitsu’s disclosed settlement (which I assume meant some form of benefit offered to Fujitsu) were used as leverage to use an asset that they did not create. Yet, according to trademark law, as long as the products still exist and that the companies pay periodic fees, the trademarks should remain with the first registrar. And it sounds fair that trademarks should be given on a first-come-first-served basis instead of who-can-get-most-famous rubric.
My personal take on these two cases is that Cisco and Fujitsu have all the right to grab whatever Apple is willing to offer to sell their trademarks. They should be compensated for sharing or ceding the trademarks they legally own. And if Apple cannot offer what they expect, then they should have the right to retain their exclusive trademarks. Indeed, they are lucky that they are receiving benefits that they obtained through pure luck. But the rightful owner of a property should have the right to enjoy unexpected value increase. However, I can see convincing arguments from both sides. Legally, the opposing view has no potential to achieve substantial success. It would need to come down to a moral argument for the trademark holders.
Just to end on an interesting note, somewhat related to the topic of Apple trademarks: Perhaps Apple needs to be more aware of market potential of ‘i’ series.
The trademark is a powerful tool that although has drawn some ire, continues to be a legitimate way to hold the right to an image or theme through an extended period of time. Before we can even evaluate trademarks however, we must first realize what their original intention was for.
Trademarks have existed as a way to prevent confusion between brands. So that companies have control of what their own image is, trademarks work as a means of preventing others from infringing on their brand. It makes logical sense that people will want to protect the products of their time and energy. The idea pretty much makes the same amount of sense as it did when the idea first came up… back in the 14th century.
Flash forward nearly 700 years. What do we make of trademarks today? Well, in the modern and digital age, now more than ever, trademarks play an important role in brand management. With the ever growing spread of information and pictures throughout the world, it becomes imperative that companies protect their own image when necessary. Now although not all of what these companies do may seem right, the protection of an image and its brand are a necessity for companies (existing and future ones) to have peace of mind in spreading the brand.
Those who disagree will point out the loss of one of Facebook’s most popular games of all time. The now defunct Scrabulous.
For many, Scrabulous was trademark rearing its ugly head. However, all will admit that scrabulous was a clear ripoff of Scrabble.
Was the style of the block the same? Yup. How about the board positioning? Definitely. The value of the letters? Of course. The color of the double up and triple value squares? All of the same.
Now, don’t get me wrong. When Scrabulous was around, it was an amazingly fun game to play while procrastinating homework. However, few if any will disagree that individuals, not of the Scrabble name (said: Hasbro) profited heavily from a product that was not theirs. With all of the blatant use of what Scrabble was, it was only a matter of time Scrabulous was shut down. Many argue that Scrabulous renewed interest in Scrabble, that it sold more product than had been sold in the many decades since it was first released. Just because a product increases the popularity, doesn’t mean that the unauthorized use of the brand is any better. Although Scrabulous looked, felt, and seemed the same as Scrabble, it wasn’t Scrabble. Hasbro had a problem with that and with good reason. Left to its own vices, Scrabulous could have changed Scrabble in ways Hasbro didn’t want to deal with. A brand is an image that gains value from what it represents. When the item for which it represents fragments, there arises problems.
Don’t believe me? Let’s check out the real world to see a similar phenomenon of trademark violations.
These are Nike Hyperdunks. A shoe head’s dream kicks (Translated: An enthusiastic shoe collector’s valuable pair of shoes). These retail for about $100 USD, but further on in its lifecycle, they will retail for a lot more than one Benjamin. As you can tell in the picture, they look awesome, fit very well, are extremely light for their design, and if Kobe Bryant is to be believed, allow you to jump over a speeding Aston Martin.
Oh, the best part of the shoes you just saw in that picture are that they are fake. 100% authentic made in china ripoffs. These are the real Hyperdunks:
These are the real ones
Can you tell the difference? Not many, if any can. They look the same, feel the same, smell the same, and seem to function the same, but they’re not the same. The weighting is different, the support technology different, and apparently they “feel different” (my brother’s words, not mine). However, to the unsuspecting buyer who’ll probably buy this pair of shoes at a “great” deal for $40 dollars on eBay, they might as well be the same Nike hyperdunks they saw advertised. This shoe represents what Nike trademarked: it’s brand, it’s image, and its product. The nearly identical ripoff represents degradation to all three of those aspects. And so, the discounted shoes not only discount the quality of the merchandise, but then charge the discount to Nike’s reputation tab.
Now, I’m not saying that all copies are as blatantly terrible. Scrabulous functioned well and for all intents and purposes, was Scrabble. Hasbro, however, had every right to get rid of Scrabulous as it could have very well misrepresented its brand (as it did when it was buggy in the beginning). To draw from the loss of Scrabulous that trademarks are a cancer in this society is ridiculous. Trademarks are one of the few things that actually seem to work in the digital age. Why fix a relatively working thing when there are other terribly broken things to fix (*cough* copyright, DMCA, net neutrality, patents…)?
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.
As of November 2010, I think Facebook vs. Lamebook is one case that will be particularly interesting to follow given past cases where parodies have been established as defense. Lamebook.com is a parody compendium of funny facebook content that 
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