May 14, 2014

Trademarks: The Other IP Meat

By Ashley Mergen

As you may learn from the IP 101 series at IP Delivers, trademarks protect the brand name emblems and logos we all depend on to identify the products and services we use. Look at your closet and you’ll be inundated with logos and brand names. Stroll down your grocery store aisle and make decisions and take queues from the packaging of the food. Zip down a busy street in Hong Kong and be tempted to shop or eat based on the lighted signs covering the facades of buildings.

Every day we are bombarded with decisions—thousands of them. So many, in fact, that President Obama confessed that he relies on routine (like only wearing one of two suits!) to reserve his decision-making brain power for higher priority issues. Trademarks, whether a logo or distinctive design or feature, help us make distinguished, informed decisions on a daily basis. They help us recognize brands and the reputations (quality, cheap, luxury, etc) associated with those brands. With so much riding on the trademark as a way to drive consumer choice, this type of IP can make—and break— a company (I mean, do you remember when Yahoo! changed its branding last year?), which is exactly why 8,000 people from every corner of the world have converged in Hong Kong this week for the International Trademark Association’s (INTA) 136th Annual Meeting (of all things!).

While the trademark enjoys a glorious past, its future is faced with numerous challenges. Most significantly, is the fact that counterfeiters have all but forgotten the value of trademarks. So much so, that they steal or replicate them from well-respected brands, hoping to make a buck (or hundreds of millions of them) off of someone else’s’ reputation on their shoddy good. While online commerce serves as a foundation for many businesses, it also facilitates the reach of these illicit ones, leaving companies and governments scrambling to confront this leeching menace.

Enforcement and cooperation against trademark infringement across borders also leaves quite a bit to be desired. As you can see from our enforcement and trademark rankings in the International IP Index, some countries either lack the tools or the will to protect domestic and international trademarks, sometimes serving as a haven for counterfeiting operations.

In any case, at INTA there is a resounding concern that plain packaging—essentially the removal of all branding on the packaging of a product— hits at the very core of the trademarks’ being (and even name), stripping brand owners of their ability to use their marks in its most basic form- in trade.

While questions surround the future of the trademark, there’s no question as to its integral nature in everyday commerce. So the next time you stare at that yellow box of cereal or lace up your athletic shoes, consider—and remember—the trademark.

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