Well, here we are — a mere ten years ago today — when we dove head first, or at least, dipped our collective toes into the vast intellectual property blogging pond.

Intellectual PropertyIP — is italicized today, because there is currently a belief among some of those we respect, that trademarks aren’t intellectual property.

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?

  • Mark Prus

    I believe in the immense power of the brand. And I can think of no better way to describe a powerful brand name than “intellectual property.” David Ogilvy, who is known as “The Father of Advertising”, described a brand as “the intangible sum of a product’s attributes.” One word that sums up everything you know about the brand. Tide. Apple. Nike. Coca-Cola. Intellectual property indeed!

    • stevebaird

      I too love the broad scope and power of the comprehensive phrase “intellectual property” — thanks Mark!

  • What an interesting topic and debate.

    I’ve considered writing a book around the thought experiement “what if the world was devoid of all brands?” It was one of the experiments we bumped up against numerous times in our book, The Physics of Brand. If we have no way to protect one of the central assets of a brand, name, logo, etc, then we are heading toward the “world without brands” apocalypse.

    The second point, for those who don’t identify a name, write an origin story or make a case to attach a single word to a new product, venture or offering; it might not seem intellectual. This might also be “Ron the movie critic” who has never made a film, or named a brand, offering “constructive” criticism.

    To the point of some names given a trademark are certainly lacking any intellectual curiosity; this is the case in any industry, even the legal profession.

    • stevebaird

      Aaron, well said, as I see it, a world without brands, would indeed be undesirable — in the end, reputation, character, and curiosity will always be important in the world of personal relationships, and this is no less true in the more financially-motivated world of commerce.

      And yes, the legal profession could benefit more from design professionals like you — who put their minds to work — creating valuable intellectual property for their law firm and non-law firm clients!

  • Ron usually makes me think, but this time, he’s totally lost me.

    We use words for a reason, and our shared understanding enables communication. There’s no ‘ale’ in “Ginger Ale” but we all understand what we mean when we order one.

    Intellectual property is a great term, because it helps us quickly understand the value of certain rights that are owned. Those rights might be conferred by a government or by the culture itself, but they’re clearly not the same as owning a piece of land or a piece of smoked salmon.

    Intellectual property can change in value dramatically. It’s easy to store but sometimes difficult to maintain. It reflects not just a moment in time, but the ongoing investments that made it valuable to begin with (a copyright without the promotion that made it valuable is hardly worth anything).

    Copying the functionality of Slack (a software platform) is pretty straightforward. But if you duplicate it, you won’t create billions of dollars in value, because it doesn’t come with the label, the symbol, the user base, the trust, the momentum. That’s what you buy when you invest in Slack’s IPO.

    Does it make some lawyers happy to argue about whether a trademark requires ‘intellect’ to create? Possibly, but that’s an argument in search of a good reason to exist. Of course it’s more difficult to write Rhapsody in Blue than it is to design the lazy new Slack logo. That has nothing to do with why we need to talk about intellectual property as an asset.

    Perhaps we can just call it IP from now on and pretend that the ‘I’ stands for ‘interesting intangible assets that derive from momentum or grants of rights based on cultural fit and promotional efforts.’

  • James Mahoney

    Dear Ron,
    Like Mickey Mantle, I agree with Mr. Stengle: http://www.baseball-almanac.com/quotes/casey_stengel_senate_testimony.shtml.

    • stevebaird

      James, the brevity of your wit, is inspirational, might you own some “inspirational property” there?

  • brandexpression

    Compare these terms to the Biological Taxonomy:

    Domain

    Kingdom

    Phylum

    Class

    Order

    Family

    Genus

    Species

    I’m not going to offer a new legal taxonomy, but it seems to me that this issue is already sorted out. There are different types of property, which are broken down into subsets: Real & Personal Property (tangible) and Intellectual Property (intangible). The latter is broken into Patents, Trademarks, Copyright, etc., and even those are broken down into different types.

    Mr. Coleman’s argument appears to conflate the legal definitions of “creativity” and “intellectual” with their real-world counterparts. It is a bit like mistaking a liberal arts education for a democratic education, which is both inaccurate and imprecise.

    Let’s replace the word “intellectual” with “intangible” for a moment. It becomes crystal clear that property is either tangible or intangible and that trademarks are in fact intangible. However, if we replace “intellectual” with “smart” or “Intelligent” things are far from clear.

    Personally, I can’t stand when people refer to the name or logo as “the brand.” As a brand strategist and identity designer, I see names and logos as vessels (tangible) that carry and convey meaning & value (intangible). Refering to the names and logos as the brand itself strips the concept of brand of both meaning and value.

    That said, I understand Mr. Coleman’s position; There is, in fact, a Likelihood of Confusion.

    • stevebaird

      Mark, this is a very smart and valuable addition to the discussion, thanks so much for sharing your valuable thoughts and perspective, sorry it took me so long to acknowledge before now!