John noted that copyright’s requirement of “originality” is not the same as the requirement of “novelty” in patent law. Ron then weaved in some nice insights about creativity and trademark.
The heady discussion led me to rediscover a blog post of mine from more than nine years ago dubbed: The Paradox of Brand Protection: Knowing When to Hit the Consumer Over the Head.
If you can get past the congested text from this beginner’s first few weeks of blogging, it’s actually worth a complete read for the content, but for now, here’s an excerpt with some better spacing:
“I often remind branding professionals that trademark law rewards their creativity. Some seem to perk up with this subtle encouragement. After all, everyone likes to be rewarded, right? Well, one of the unobvious rewards for creativity comes in the prompt timing of when trademark ownership begins.
Being able to own and enjoy exclusive rights on “day one”—meaning, either the first day of use, or even before first use, upon the filing of a federal intent-to-use trademark application—is a big deal in the world of trademark and brand protection. In fact, timing can be everything.
Even a single day can be the difference between having the right to exclusivity and owning nothing at all (except perhaps, the losing end of a lawsuit and a pile of product and packaging ordered to be destroyed).
On the other hand, when rights are not available on day one, you may have an uncontrollable situation; one where competitors and others have an opening to copy or mimic before enforceable rights attach, and in some cases, these actions can make it difficult, if not impossible to obtain exclusive trademark rights at all.
So, the timing of when trademark rights are acquired is quite important, and those in the business of creating brands play an important role in when those rights may come to be.”
Those remarks aren’t ideally suited for the character limit in Twitter, but I’m thinking they reinforce Ron’s point that priority of trademark rights can be impacted by creativity/novelty.
As to my above remarks about federal intent-to-use trademark applications, I’m also mindful of this little dialogue shared with Ron a few years back, but nowhere near nine years ago.
So, the good news for the day is that the law, especially intellectual property law (copyright, patent, and trademark) does reward creativity, in a variety of ways, and each in their own way.
During the official portion of the INTA program, I’ll be reflecting on the impact of a creative legal theory that consumed lots and lots of lawyers’ hours (billable/non-billable) for a quarter century.