Intellectual Property Primer – Part One – Trademarks

This is the first of a series of posts on what ‘Intellectual Property’ or ‘IP’ is, and what purpose the concept serves. The series was inspired by the realization that the vast majority of the people currently discussing Intellectual Property Issues on the internet have very little knowledge of the subjects they are discussing, or have specialized knowledge of a particular sub-section, and are trying to generalize their specialized knowledge in ways that are inappropriate.

By attempting to educate everyone, hopefully we will be able to raise the level of discourse, and address some of the common misconceptions. In many ways I’m one of the better able to undertake this task, While I’m not technically an expert, over my years in industry I’ve worked with all three of the concepts that make up ‘Intellectual Property’. The term Intellectual Property in itself is a misnomer. There isn’t anything ‘Intellectual’ about a Trademark, even though Trademarks are the most important type of IP, which is why I prefer the term ‘Intangible Property’.

There are three different types of Intangible Property – Trademarks, Patents, and Copyrights. These are vastly different concepts used in different ways. A large part of the confusion on the internet is caused by a misunderstanding of the three terms, even though the terms themselves are very simple. The laws covering the concepts are far more complex. If you have legal issues which involve Trademarks, Patents, or Copyrights, I strongly suggest that you hire a legal professional. This may sound strange coming from someone who has been very critical of legal professionals many times in the past, however my criticisms have never been of the profession itself. All of my criticisms have been of specific statements and actions by the professionals involved, which I disagreed with.

This is a simplified explanation, meant for the layman. For an in depth explanation, you need to see an expert.

Trademarks

In many ways Trademarks are the oddity of the Intangible Property group. While both Patents and Copyrights cover creative acts by artisans, artists, or authors, a Trademark is actually a form of consumer protection. Trademarks are an ancient concept, which can be traced back to the Roman Empire, where weapons manufacturers marked their production. Each manufacturer used a unique mark, which allowed the Roman Legionnaire to know who’s weapon he was using.

Because each of the different manufacturers used different materials and methods to manufacture the weapons that the legionnaire was using, a sword from one manufacturer might be more suitable for use in one situation than a sword from another manufacturer (for example the cold in Northern Britain could mean that one make of sword would be more susceptible to cracking in wintertime use). Obviously being able to pick the correct weapon for the situation was important to the man on the spot. It was also important to the Empire as a whole. Being able to identify and remove from service weapons that had proven not suitable for use contributed to the stability of the Empire.

Criminals immediately recognized the importance of Trademarks. The use of the mark of a highly reputable weapon manufacturer meant that a cheaply made sword could be sold for a higher price. Of course if the real manufacturer found out, the criminal could end up dead. Since there were (as far as we know) no trademark laws at the time, the only answer to trademark abuse was to take action yourself. Or hire the historical equivalent of Tony Soprano to take action for you.

And of course when the concept of a trademark was invented, the vast majority of the population was illiterate. The word ‘Apple’ spelled out would have meant nothing to most people, but the symbol of an apple with a bite missing would have been easily understood. This is why many trademarks today are symbols, though words and phrases are used as well.

Today, unlike in Roman times most countries have laws regulating trademarks. The laws vary from country to country, but one point that is common is that you aren’t allowed to trademark someone else’s concept. This is supposed to protect both the consumer, and the trademark owner.

In other words, if you set up a business, I’m not allowed to trademark your business name, even if you haven’t filed for a trademark. Trademark Trolls, who trademark a business name, and then threaten to sue the business owner, are a rising problem in part because of the costs of fighting an improper trademark suit, and also because there is no effective punishment for filing an improper trademark. And calling in Tony Soprano isn’t legal, even if it might be effective.

Trademarks are extremely valuable to consumers. If you hate Apple products, it’s of value to you to see their trademarked logo, so you can avoid buying. If you love Apple, their trademarked logo is also of value to you, as you know the product is by a manufacturer you like. Both ways, you the consumer, win. Even if you don’t care about the company right now, the easy identification allows you to buy the product, evaluate it, decide if you like it, and then avoid or search it out in future.

Trademarks are often confused with Branding. Branding is an attempt to give a product or company an image. Everyone has seen the Mac-PC commercials. Mac is this cool dude, while PC is a stodgy goof. The idea being, that if you buy a Mac you are cool. Oh, the commercials also cover the other advantages of buying a Mac, such as their superior security model, but the main aim is to make you think that buying a Mac will make you cool. It won’t make you cool of course. But they try to make you think it will.

A memorable trademark is often simple. Everyone in North America knows what the Golden Arches stand for, whether they like eating at McDonald’s or not. The Apple with the bite out of it. The Three Pointed Star which represents Mercedes Benz (Daimler Benz outside of North America).

Trademarks, a consumer protection measure, shouldn’t be considered similar to Copyrights. Copyright is a limited term monopoly given to the author or artist who produces a work. Trademarks, a consumer protection measure, shouldn’t be considered similar to Patents. Patent is a limited term monopoly given to an inventor for an invention.

Trademarks on the other hand, are forever. As long as the mark is in use, it remains the property of the holder (it can also remain their property if it’s not in use for periods of time, check the law in your jurisdiction). The Disney Company holds a trademark on Mickey Mouse. It will still be valid, even if the copyright on a work that features Mickey Mouse expires. Never mind the patent on the camera that was used to shoot the film.

Remember – Trademarks are the oddball of Intangible Property. Unlike Copyrights and Patents, a trademark doesn’t represent a creation, even though creativity was involved in choosing the mark, and designing the logo.

Regards

Wayne Borean

Sunday October 17, 2010

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