Try to solve this riddle by the end
of the first paragraph: What are the things of which we’re seldom aware yet surround us on a
daily basis? What are the things that,
from time to time, may cause us and our loved ones to blindly rely on them for
our very lives? What are the things that
will tempt individuals to pursue their personal cravings while others will
scramble away? What are the things that can make us sniff their promise or,
conversely, stink to high heaven? What can make us enthusiastically blow our
savings but within a few weeks make us
regret doing so? Exactly what are those
things that can make some of us swear undying allegiance to them while
simultaneously make our spouses turn up their nose at the very thought?
They’re called trademarks.
And without them there can be no branding. And without branding, the terms, “market segment”
and “profit maximization” carry little meaning.
This aspect of intellectual property —
too often confused with patents and
copyrights — is
among the most valuable item a business, association or other organization
possesses. Nonetheless, the overwhelming
potency of trademarks in influencing both our perceptions and purchases is
frequently taken for granted. Even more
weird, we’re
usually unconscious of their immediate power in shaping our lives.
A trademark (or trade name in the
case of the mark’s
owner ) is a symbol, word,
phrase, logo, sound or combination that identifies
and distinguishes an entity, product or service. It’s so critical to companies and their customers as well as
to other organizations and their members that other would-be competitors that infringe
or otherwise attempt to get a “free ride” on another’s mark can be sued.
Think BMW, the Nike Swoosh, Xerox,
Apple, the Golden Arches, Caterpillar, Google, Amtrak, the Marlboro Man, John
Deere, Bud Light, ZG Worldwide, Delta (Airlines and Faucets). The list is not only endless, it’s constantly changing. Moreover, just as the stock valuations of the
Fortune 500 regularly change their financial worth so do marks which are
judged, fairly or not, on a company’s perceived marketability whether it’s to the fast food crowd or equally
ravenous NFL fans.
In general, newborn trademarks
receive their legitimacy in one of three ways: via interstate commerce, formal
registration and/or a combination of the two.
In common law countries such as the US, merely carrying the product
across state lines makes the mark legally protectable. However, the vast majority of sovereign
nations require the mark to be registered before it becomes enforceable. Nonetheless, even in the good ole’
USA, registration with either the
entity’s
home state (e.g., the Alabama Secretary of State) or the USPTO is strongly
recommended to put potential users of the same (or confusingly similar) mark on
notice. And no, a registered domain name
does not count as a trademark.
Even with state, national and
international registration and subsequent use there can be a battle royale over
the true ownership or permissible use of a mark by competing corporate
behemoths. Additionally, trademark
owners must be on constant guard to ensure that their intellectual property
doesn’t
lose its distinctiveness, become generic (“Please xerox that for me right away.”) or otherwise lose its near magic
power to make us rely, to buy and consume, to make us dream and/or to arouse us
to gamely pursue our material and emotional desires. How that extraordinary power can lose its
invisible but very real control over us can be even more fascinating than their
initial creation and subsequent use.
Stay tuned.
John
Banks-Brooks, Associate
ZG
Worldwide
June
2014
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