“Use it or lose it” isn’t a principle we generally associate with ownership — we all have closets filled with unused stuff that nevertheless remains ours for years — but it is one of the hallmarks of trademark law. Whatever your opinion of our current IP laws, it’s almost unquestionably a good thing that individuals and companies can file for a trademark only to sit on it, not unlike those domain squatters eyeing an opportunity to capitalize not on a fully-formed idea, but rather happening upon a name likely to be sought out for use. Conversely, there’s always the chance that the one messing up your chance at a trademark is yourself.
Continue reading “Reminder: Use Your Trademarks or Risk Losing Them”
Social media doesn’t have the best history when it comes to copyright to this point in its history. The poor record makes a kind of sense: it’s hard to govern a platform with tens of millions of users, provided that we believe they even want to regulate behavior, and tech companies in general have struggled to find the right measure of action to take, often swinging wildly between indifference and overreaction based upon the crisis of the moment. These companies want growth at all costs, and problems are often left to grow and fester until such a point that they threaten that growth. All this is to say that social media companies as a whole don’t seem to have a coherent ideology on much of anything, let alone copyright and copyright protection.
A big part of IP law is the ability for companies to protect their ideas and their brand — the main part, really. And it’s important and necessary for such protections to exist, to prevent things like theft and infringement from becoming rampant problems with little or no means or seeking justice and recompense. But we’ve seen that the power and protection offered to rights holders through the law also enable bad behaviors as well, notably in the case of patent trolls working the system to extort what money they can.
Big companies don’t get big by letting others trample on their intellectual property, nor do they stay big by getting themselves become complacent in that regard once they’ve climbed to the top of the pile. Big revenue means a big legal department, eager to pursue every possible instance of infringement and justify their considerable billable hours. More often than not it’s an arrangement that works out well for the conglomerate in question, but that zeal can occasionally lead to the occasional misstep.
If there is a theme to be found in this week’s blogs, it’s that sometimes less is more when it comes to enforcing your copyright. Disney going after what is a rounding error for them from an elementary school is an extreme example, to be sure, but there are other instances of companies taking a hardline approach that, rather than preserving the brand and its value, do some damage in tangible or intangible ways. It is, after all, the case that sometimes free publicity is worth the cost of what you might perceive to be a bit of infringement.
A fair bit of branding is trying to carve out your own space in the marketplace wheels still hewing close enough to the general themes of the industry to be identified as being of the same ilk. It’s maybe not the perfect example, but the one front of mind to me is Dr. Thunder, the soda you see sold at Wal-Mart that’s clearly meant to evoke Dr. Pepper. You know what you’re getting when you buy Dr. Thunder — something similar in taste to Dr. Pepper — but it’s not so close in name as to be actionable. Wal-Mart’s version is evocative without being entirely derivative.
It’s inevitable that artistic works of art reference other works, particularly in our present nostalgia-fueled moments. Usually it’s just an homage, but more and more you see things directly referenced, things that evoke a time and place and experience in our lives. And usually it’s fine, from a legal perspective; most studios and creators are smart enough to know what they need to license, or the rules regarding fair use. But what happens when a work is built entirely around the precept of another property?
Building on top of existing works is a fundamental principle of creation, and one that has its place within precepts of intellectual property. But that idea increasingly seems to run up against a modern interpretation of IP law, and copyright in particular — specifically, the hyper-protective view that many well-heeled creators take in protecting their work. It goes beyond the product itself, particularly in the case of entertainment: don’t even mention a film or show or any sort of product in a YouTube review, lest you risk having your videos flagged for infringement. It’s IP law as aggressive, a tool of offense, rather than as a defensive measure against misuse, and that theory is being fought over in the courts on a regular basis.
Gone are the days when people put in their thirty years at a single company and retired with a gold watch and a pension. Mobility is not only necessary, it’s the preferred option for many people who hope to rise through the professional ranks more quickly than the old-school approach of waiting your turn and paying your dues. Such movement isn’t a problem or most employees with most companies, but in some instances, there are questions of proprietary information that might walk out the door with some key employees without due consideration to protecting it, or even with it.
Copyright in the present day presents any number of questions for the interested observer, not least of which are questions completely unrelated to copyright itself. New technology presents new challenges to both copyright and to the understanding of people who have aged out of the demographic of said tech.