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?

Earlier this month, Seth Godin wrote an interesting blog post called "The overwhelming fear of being wrong." In it he writes:

"Almost every marketer I know underestimates how widespread this fear is. It is the lone barrier almost every product and service has to overcome in order to succeed."

Fear of being wrong can also be a significant barrier to providing good legal advice, especially when trademark counsel is being asked to assess risk, as I wrote a while back:

"Perhaps fearful of choosing the wrong side makes sitting on the fence the preferred course of action for J.D. Waffler. He or she is much more comfortable telling you both sides of the story and ends up providing this kind of invaluable advice: ‘It could go either way,’ ‘you could really flip a coin on this one,’ ‘it’s six of one and a half a dozen of the other,’ or ‘it’s no better than a 50/50 shot.’ Let’s just say, that is pretty safe advice, assuming the clients don’t demand more."

For more on dealing with J.D. Waffler, see here.

By the way, what is 50/50 legal advice worth?

Would it surprise you to learn that not all trademark types are created equal? I didn’t think so. Like any profession, some of the professionals are better and more gifted than others. A few are much better. And, if bell curves have any application here, a few are much worse too.

In the inaugural post for DuetsBlog, last March, we introduced a type of trademark attorney known as "Dr. No," and we discussed how he or she likes to focus on the "Parade of Horribles" instead of creative solutions to difficult and important problems:

The underlying personal brand promise for this lawyer is to say “no,” early and often, believing an enormous hourly rate is still justified by citing a multitude of technical and valid legal reasons in support of the unhelpful answer. He is obsessed with saluting to the Parade of Horribles.  He is typically part of the problem, not the solution.  Perhaps repeated frustration with this kind of Dr. No is what motivated one cartoonist to brand (uh, jab) the “trademark attorney” as “the most basic figure," at least in the world of Art.

Avoiding the "Dr. No" moniker and mindset should not be the only goal of trademark types. There is clearly room for improvement in our profession in other areas too.

Gather ’round, it’s time to meet J.D. Waffler.

Continue Reading J.D. Waffler: The Art of Taking a Position