Ridiculous History: IP Part Two — The Baffling World of Trademarks

Released on January 23, 2025 by iHeartPodcasts

Introduction to the Episode

In the second installment of their intellectual property (IP) series, hosts Ben Bullen and Noel Brown delve into the intricate and often perplexing realm of trademarks. Building upon their previous exploration of IP's origins, this episode focuses specifically on trademarks, unraveling their definitions, purposes, historical evolution, and the complexities involved in their protection and enforcement.

Defining a Trademark

The episode begins with Ben and Noel setting the stage by defining what a trademark is. Drawing from the United States Patent and Trademark Office (USPTO), Noel explains:

“[At 06:14] Noel Brown: They define the term trademark as is their craft, their wheelhouse. They want to do as any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It's how customers recognize you in the marketplace and distinguish you from your competition.”

Ben adds a lighthearted note referencing their own podcast:

“[At 06:39] Ben Bullen: Which is great because I was listening back to an earlier episode where we had a slight riff on things that are technically trademark infringement. Air Jorbans shout out to everybody who who heard me just a few minutes ago say just do it. That is a Nike trademark along with a swoosh a douche.”

Purpose and Misconceptions of Trademarks

Noel expresses his initial confusion differentiating trademarks from copyrights, patents, and brands:

“[At 04:55] Noel Brown: I personally have always somewhat been baffled by the difference between a trademark, a copyright, a patent, a brand. And the fact of the matter is they're all intrinsically kind of interrelated, but yet they have their own specific sort of umamis, each one of them on their own.”

The hosts clarify common misconceptions, emphasizing that owning a trademark doesn’t equate to owning a word or phrase in general, but only its specific use with particular goods or services:

“[At 08:20] Ben Bullen: Why is a patent different from a trademark? What makes a squid not an octopus, but still a cephalopod. Unlike the concept of a patent, the concept of a trademark is less rigorously defined... You don't have the rights to the word or phrase in general, only to how that word or phrase is used with your specific goods and services.”

Historical Evolution of Trademark Laws

Ancient Practices

Noel highlights the ancient origins of trademarks, tracing back to prehistory where personal marks were used to claim ownership:

“[At 24:15] Noel Brown: Some of the earliest forms of identification of marks date from prehistory. For instance, the Lascaux cave paintings in France show bull drawings with marks on them. Experts believe that people were using personal marks to claim ownership of livestock.”

Middle Ages and Early Laws

Ben and Noel explore the Middle Ages, where tradespeople began using signs and marks to distinguish their goods, laying the groundwork for modern trademark laws:

“[At 26:10] Ben Bullen: This dates back about 15,000 years, minimum. We also see rather that in the world of Egyptian masonry In ancient Egypt, 6,000 years ago, you could see stonecutters branding their stuff.”

France’s Early Legislation

The conversation shifts to France's pioneering role in trademark legislation:

“[At 30:18] Noel Brown: In 1857, France instituted the first comprehensive trademark system with the Manufacture Goods Mark Act. This established a trademark deposit system and set guidelines for handling trademarks based on prior registrations.”

Development in the USA

Ben narrates the evolution of trademark laws in the United States, from initial statutes to the landmark Lanham Act of 1946:

“[At 35:04] Ben Bullen: So speaking of experimentation and taking ingredients from the global thought of humans and bringing them back to your own ideological kitchen, the US whipped up its own version of trademark law... In 1946, Congress passed the Lanham Act, which remains the cornerstone of U.S. trademark law today.”

Modern Trademark Protection

Registration Process

The hosts discuss the importance of registering a trademark with the USPTO to gain nationwide enforceable rights:

“[At 16:23] Noel Brown: It's similar to copyright law in that technically you get protection the moment you create a unique work. But registering it provides stronger protections, including nationwide enforceable rights.”

Common Challenges and Enforcement

Ben and Noel highlight the challenges businesses face in protecting their trademarks, such as infringement and the necessity of ongoing vigilance:

“[At 48:50] Ben Bullen: Trademark dilution occurs when you see other forces... use your trademark without permission. This unauthorized use could lead to confusion among customers and weaken the association between the trademark and the company that owns it.”

Protection against Dilution and Genericide

The concept of genericide is introduced, explaining how widespread use of a trademark as a generic term can dilute its distinctiveness:

“[At 49:58] Noel Brown: And can I just add too, that generic size is like a verb. And the term that I was excited about and wasn't familiar with is the noun, which is the 'genericide.'”

Practical Advice on Registering and Maintaining Trademarks

The hosts provide actionable insights for listeners considering trademark registration:

1. Conduct Thorough Research: Before pitching a trademark, ensure the name or design isn't already in use. Ben advises:

   “[At 46:45] Ben Bullen: Look, you should always do your homework, do careful research to your point Noel, before you even pitch a trademark.”

2. Understand the Costs: Registering a trademark can be expensive, especially if challenged. Noel emphasizes the importance of budgeting for potential legal fees.

3. Maintain Vigilance: Continuous monitoring and enforcement are crucial to prevent unauthorized use and dilution:

   “[At 48:10] Noel Brown: Bureaucracy is quite a beast to tackle. So just because your trademark is registered, it doesn't mean that you own it in perpetuity.”

4. Renew Regularly: Trademarks require periodic renewal to maintain their protected status.

Conclusion and Teasers for Future Episodes

Ben and Noel wrap up the episode by teasing future discussions, including a fascinating case study of trademark infringement involving Apple Computers and the Beatles’ company, Apple Corps:

“[At 54:34] Noel Brown: ...a really interesting and telling case of these types of trademarks to disputes... between Apple Computers and the Beatles.”

They express gratitude to their research associate, Max Williams, and other contributors, setting the stage for continued exploration of intellectual property in upcoming episodes.

Notable Quotes with Timestamps

• Defining a Trademark:
  “[06:14] Noel Brown: ...any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.”

• Trademark Misconceptions:
  “[08:20] Ben Bullen: You don't have the rights to the word or phrase in general, only to how that word or phrase is used with your specific goods and services.”

• Ancient Origins:
  “[24:15] Noel Brown: ...the Lascaux cave paintings in France show bull drawings with marks on them.”

• Trademark Dilution:
  “[49:58] Noel Brown: ...genericide.”

• Practical Advice:
  “[46:45] Ben Bullen: ...do careful research before you even pitch a trademark.”

Final Thoughts

"IP, Part Two: The Baffling World of Trademarks" offers a comprehensive and entertaining examination of trademarks, blending historical insights with practical advice. Ben and Noel adeptly navigate the complexities of trademark law, making the episode both informative and engaging for listeners new to the topic and those seeking deeper understanding alike. Stay tuned for the next episode, where they will unravel the legendary trademark dispute between Apple Corps and Apple Computers.