According to our friend Ron Coleman of the Likelihood of Confusion blog:
“[N]othing about trademarks is brain-born other than what we might fairly call the ministerial choice to associate a given trademark with a good or service. That process may involve, and often does, a lot of thinking, creativity and intellection. But none of that invests the trademark itself — which may, in fact, be completely lacking in creativity (“Best,” “Ford,” “American”) — with the quality of intellectual, mental, creative or original content such that it should be deemed ‘intellectual property.’”
There’s a lot to unpack there, but until then, just so you know, I’m firmly on the other side of the fence, viewing trademarks as being a recognized subset of the convenient category label commonly referred to as “intellectual property.”
Stay tuned on this topic, there is much more to say, much more than there is time left in this 10th birthday to do the topic justice, but for now, I’ll simply rest with a notable quote from branding icon, Walter Landor:
“Products are made in the factory, but brands are created in the mind.”
While trademarks aren’t brands, not only can trademarks be bought, sold, licensed, and leveraged as property, trademarks protect brands, and they embody all the intangible goodwill of the portion of a business associated with a particular mark.
Dare I say there is nothing ministerial about the brain-born brilliance Landor brought to his craft as a designer, nor is there mere ministerial contribution to the brilliance and creativity that our many non-lawyer guest bloggers have brought to their work over the last decade. Aaron? James? Mark? Agree?
We’ve written a lot over the years about picking a side, the art of taking a position, not waffling; one of the things we love about Ron is he is unafraid to take a position, to plant his flag firmly in the ground — that’s what we’ve tried to do too, and what we intend to continue to do going forward.
Here’s a question, what purpose is served by excluding trademarks from the definition of what constitutes intellectual property? Here’s another, who gets to decide?