IP, Part Two: The Baffling World of Trademarks

Summary

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.

Transcript

[Ben Bullen]

Ridiculous History is a production of iHeartRadio. Welcome back to the show Ridiculous Historians. Thank you as always so much for joining us. Plus, let's hear it for the man, the myth, the super producer, Mr. Max Williams. Oh, man. You guys ready to get intellectual with a bunch of our property today?

[Noel Brown]

I guess. Hey, hey.

[Ben Bullen]

I will trade some marks. They call me Ben Bullen. Who is that dulcet music made man? It's Mr. Noel Brown.

[Noel Brown]

Oh, Ben, you still my beating heart. That's the kindest thing I've heard all week. And I mean that. You know what I think of whenever I think of intellectual property? What's that? I'm a child. People often shorten it to ip and then I. My mind goes back to childhood to that old joke, I pee freely, you know?

[Ben Bullen]

Yeah, yeah, I gotcha. I always think of IP man because.

[Noel Brown]

The kung Fu films, right?

[Ben Bullen]

Yeah. When I was. I was watching those the first time as. As our regular podcast reviews indicate, I am still learning this language, English. When I. When I first tuned into IP Man, I thought it was IP man and IP Freely Man. I thought it was going to be about a very different kind of hero's journey.

[Noel Brown]

Patent lawyer. Perhaps the dullest action picture of all time.

[Ben Bullen]

Just gets into it, right?

[Noel Brown]

Why don't we get into it?

[Ben Bullen]

Yeah, that's what we're doing. We're getting into it.

[Noel Brown]

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[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

Where'd you get those shoes? Easy. They're from dsw. Because DSW has the exact right shoes for whatever you're into right now. You know, like the sneakers that make office hours feel like happy hour, the boots that turn grocery aisles into runways, and all the styles that show off the many sides of you, from daydreamer to multitasker, and everything in between. Because you do it all in really great shoes. Find a shoe for every you at your DSW store or dsw.com this is part two of a continuing series. Thanks to our research associate, Max here. As you know, folks, we have been gathering together specific assets for a heist on ridiculous history. We're very excited to introduce you further to our 2025 crew. IP is something that perplexes and fascinates so many people and a lot of the rules and policies and history of IP as a concept, intellectual property, as you said, Noel, they are indeed ridiculous. So this is part two in a continuing series. We teased it a bit. We previously explored the origins of the idea of owning an idea that's intellectual property. And now we're talking trademarks, man. Just do it.

[Noel Brown]

Yeah, for sure. And 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. Today, we are talking about the idea of a trademark. So, I mean, I think what this episode is gonna serve as is gonna be sort of a good primer on of this stuff. And then we're gonna come at you shortly after. Maybe not the next exact episode, but I think two episodes down the road with a really interesting case of trademark infringement and a storied lawsuit that went on for decades between Apple Computers and the Beatles.

[Ben Bullen]

Yeah, from earlier. So this is how we're gonna proceed. Similar to our earlier explorations of patents, we need to define the thing we are looking into and we can define a trademark in a very silly, dare I say, ridiculous way. Thanks to the uspto, their full name. When they're in trouble is the United States Patent and Trademark Office.

[Noel Brown]

Bunch of scamps over there at the uspto. I know, Irascible, even rascals. And they define the term trademark as is their craft, their wheelhouse. They're 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 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.

[Noel Brown]

Transmorphers, I think came up as well, the whole idea of a mockbuster. Ben, I just have to add, you mentioned a slight riff that we did. I think most of our riffs are pretty slight and I'm cool with that.

[Ben Bullen]

I'm all right with it. I think we've got. I think we had a lot more on the horizon for that one. But we did have to actually do our show. Cause otherwise it would just be you and me hanging out and saying stuff like Bogots instead of gobots. Right?

[Noel Brown]

Yeah. And I think your results may vary. Ridiculous histories. As to whether you think our riffs are slight or eternal.

[Ben Bullen]

But the uspto, again, still learning English.

[Noel Brown]

Thank you for your patience. So the USPTO also says that the purpose of a trademark is the following. To identify the source of your goods or services. One, which in and of itself has a super interesting historical precedent. And also to provide legal protection for your brand.

[Ben Bullen]

2.

[Noel Brown]

And finally, to help you guard against counterfeiting and fraud.

[Ben Bullen]

3. Technically, I would say that's 2B, but whatever, you know, we're not in these meetings with these folks.

[Noel Brown]

That's true, Ben. They are very similar.

[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. So if we go back to our Patent and Trademark Office friends, they will tell us, quote, a common misconception is that having a trademark means you legally own a particular word or phrase and can prevent others from using it. However, 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. And it goes on. But let's elide this real quickly.

[Noel Brown]

Well, that quote, by the way, Came from our pal, Charles Dickens.

[Ben Bullen]

Yes, thank you. I will accept my BAFTA with grace and won't make the speech too long. So the idea here is really tricky. You could, for instance, this is a fun little story. You could, for instance, trademark the concept of home on a social media platform. That's exactly what Mark Zuckerberg did. But you can't own the word home. Right. You could say you can own it for very specific. For like a narrow scope of industry. If you have a. Our patent office folks, and thank you again, Chuck Dickens, our patent office folks say you could, for example, use a logo as a trademark for, let's say, your small woodworking business. You're whittling and carpenting and you can have a little symbol, you can have a little phrase. You can't stop other people from. Like if you have a log and then a thumbs up, like an axe, that is also a thumbs up in the logo.

[Noel Brown]

Oh, that's a good idea for a logo for woodworking pen.

[Ben Bullen]

Ah, thanks, man. And this, I. I got a million ideas. Right. But I've only got these two hands.

[Noel Brown]

You are what they call an idea man with two hands.

[Ben Bullen]

Is that true? So this doesn't mean that someone else can't have a logo that looks very similar if they are not in the woodworking industry. Like, what if they just sell thumbs ups?

[Noel Brown]

Exactly. Just like as a service, you pay them and they issue you one rousing thumbs up for whatever you did. You know, it's just like an attaboy for hire. I like that. That's not a bad idea.

[Ben Bullen]

That's.

[Noel Brown]

We should write this down. It's like a task rabbit for good vibes, you know, someone that just comes over and pats you on the back and tells you you're doing a good job.

[Ben Bullen]

Oh, oh, yeah. You're in an awkward social event for any of our introverts in the crowd. And you imagine you could hire someone who just drops in, pats you on the back and hands you a thumbs.

[Noel Brown]

Up and it's like, am I right? And then walk away.

[Ben Bullen]

Whoa, I gotta go.

[Noel Brown]

This is great. With no context whatsoever. No, no, we're doing this. No question about it. The thing about trademarks, however, is it's kind of to your point really all about how you use it and for how long and with what level of specificity. There's another common misconception, which is the belief that choosing a trademark that simply describes your good or service is all there is to it. Yeah, it's not the case. It requires. I mean, okay, this is more of a strategy thing, I guess. Right. But what a good trademark really needs is for to have a novel component to it, to be in some way creative and easy to discern. That's why we talk about famous trademarks. You know, things like the swoosh. The aforementioned swoosh. And down in Walmart just recently did a rebrand where they basically took their logo, which is kind of like an asterisk on a light blue background, and they just kind of turned on the bold setting and made the background a little darker blue. But you could argue that that is a meaningful change. Probably got someone paid a whole lot of money and that that logo, however simple, is associated exclusively with something like Walmart for the purposes of retail.

[Ben Bullen]

Yeah, yeah. So shout out or tip of the cap to target. I love that you're pointing out the tech industry. Those, those properties big with this stuff. Apple, Microsoft, Google, all the hits. Also, as you mentioned, Walmart, Lego, they're super deep in trademarks. Right. I think we're supposed to call them LEGO bricks. It's so weird.

[Noel Brown]

Not to mention the fact that a unique and creative trademark is a whole lot easier to protect in court and to defend that someone else definitely was trying to dilute my brand by using something that is very much associated. But there also can come a point where that can hurt you, being so famous that people just use your thing as a stand in for lots of things. And we're gonna get into that too, and introduce you all to a really cool new word. Yeah.

[Ben Bullen]

You know, our patent and trademark buddies are saying the words creative and unique and effective and easier and, and I would add to that specificity, that's really what they're arguing. To your point, Noel, if you had, you know, like Teenage Mutant Ninja Turtles, that's a very specific concept. You know what I mean? That's not just a stylized check mark on a sporting shoe.

[Noel Brown]

They combine four whole things. They're teenagers, they're mutants, they're ninjas, and yes, they're turtles, which is arguably unique. But then on the other hand, it'd be pretty easy just to change the turtles to like raccoons instead of ninjas. Maybe they're chefs or scientists.

[Ben Bullen]

Samurai also.

[Noel Brown]

Yeah, that's a better example. Ben. Thank you much, much better example. But it just shows how tricky navigating this whole idea of trademarks can be.

[Ben Bullen]

I love the idea too. I'm picturing this as a moment in the ridiculous history cinematic universe. The bedraggled mayor of New York City, or insert city here is yelling at one of his a or the chief of police and is saying, you're telling me there are mutant ninja Turtles fighting crime as vigilantes in our city? And the police chief says it's worse than that, sir. They're teenage. Oof.

[Noel Brown]

Teenagers are the worst. Up to no good, no doubt. But those particular teenagers, I think, you know, while getting into little punch ups between them, they had good hearts.

[Ben Bullen]

Yeah, yeah, agreed, agreed. And this is also sort of a side sideline. Shout out to our good friend Nick Benson, who just is absolute gaga over tnmt. Oof.

[Noel Brown]

I'm glad you did really well with that. I would have muddled those letters all up. So you can establish rights to your trademark simply by using it.

[Ben Bullen]

Yeah.

[Noel Brown]

But that act alone, while giving you some level of protection, it does limit that protection only to a very specific geographic region that you are operating in as a business providing your goods and or services.

[Ben Bullen]

Yeah. So if you want stronger protections, the argument goes, here in the United States, you will want to register your trademark with this branch of the government or with this department of. Of the government.

[Noel Brown]

It's kind of similar to copyright law in that technically you get copyright protection the moment you create a unique work. But if you don't actually get it copywritten or registered, you know, like with the Library of Congress or whatever, then it's easier for someone to challenge you on that claim. But these days with computers, you could certainly submit a digital file that you've created with a timestamp and you could technically prove that you did it first. With trademarks, it's even a little more kind of muddled up and confusing.

[Ben Bullen]

100%. Yeah. You are not required to register your trademark. There is no legal compulsion to do so here in the U.S. however, you just made the excellent astute point, Noel. The primary advantage here for a lot of people in registration is that timeline. It is setting that chronology in place and on record. That's why a registered trademark gives you rights and more protection than an unregistered one. Without getting into the weeds too far, we can see the tendency already. If you have a very small woodworking business with a thumbs up axe going through it, and you only work in this one specific part of Montana or North Dakota, you're probably good to go. But as your business grows and as more and more eyes are upon you, you might get some copycats. And that's where want to consider registering on a federal level, which means that you will have nationwide enforceable rights. Maybe again, it's pretty muddy.

[Noel Brown]

And just to once again give A shout out to all of our pals at the United States Patent and Trademark Office. A lot of this excellent information comes directly from them, which I would argue would be probably the best primary source on this subject, because, you know, you literally have to register it. It with them.

[Ben Bullen]

Yeah. And this is where we get to that fun little symbol. It's a tiny capital R in a circle, which means registered. And you can use that symbol to let the public know that this is your trademark. So you could, for example, say shoe feet, you know, registered trademark. And people would be like, why did you spend so much time, Ben, working on shoes that look like feet? Why would you want people to pretend they're barefoot? And to that, I would say this conversation is over, as well as should be.

[Noel Brown]

You are indeed the last word on shoe feet. So I have to say I do not trust anyone that wears those toe shoes. I just find them reprehensible.

[Ben Bullen]

Yeah, yeah. Like our. I said this in an earlier recording with you, but like our old pal Conal Byrne often says, it solves a problem I don't have.

[Noel Brown]

Also true. And just to add a little bit of quick clarity, you may have also seen that subscript of TM that can be slapped on there by anybody because that represents an unregistered trademark, whereas the R has a lot more oomph to. It has a lot more weight. It can only be used legally by the owner or licensee of a registered trademark and can only be used in the region where that trademark is registered.

[Ben Bullen]

Yeah. So at this point, we're giving you the broad strokes of how this works as a concept. Yes. Yeah, yeah.

[Noel Brown]

That was the sound of the broad strokes.

[Ben Bullen]

Sorry. Yeah, yeah. Yes. So you saw IP man as well?

[Noel Brown]

I did.

[Ben Bullen]

So that's a. That's an IP man move. Noel, maybe we get to the. The history because it may surprise a lot of our fellow ridiculous historians to learn that this is a very old idea. So old, in fact, that we're not sure when it began.

[Noel Brown]

It's got ancient historical precedents.

[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

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[Noel Brown]

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[Ben Bullen]

Call or text 988 or chat 988lifeline.org yeah, thousands of years. Millennia. Cast your memory back there as Van Morrison used to say. Well, did it?

[Noel Brown]

I don't know that one.

[Ben Bullen]

He said cast your memory back there. Lord, it's Brown Eyed Girl.

[Noel Brown]

It's in that. He says it in that song. My God, I do have to say, Ben, I heard that song out in the world the other day and I commented to the friend I was with that I really hate that song.

[Ben Bullen]

Oh yeah. Do you like any Van Morrison songs?

[Noel Brown]

Yes, I absolutely do. That one in particular though has just been done so to death sure that it doesn't sit well with me. I just never need to hear it again. But on the other hand, Hotel California stoked every time it comes on from the East.

[Ben Bullen]

Not Sure.

[Noel Brown]

Why I feel so differently about these two very overplayed songs.

[Ben Bullen]

Yeah, yeah.

[Noel Brown]

But here we are.

[Ben Bullen]

Also, you know, there are more brown eyed girls alive today than there are hotels in California, so that might be part of it.

[Noel Brown]

Definitely. Don't bother fact checking that.

[Ben Bullen]

Yeah, I mean, please do. I think my, my, my presence on the spectrum is working there.

[Noel Brown]

You're putting your money where your mouth is, Ben. I like it.

[Ben Bullen]

So, okay, look, let's go to our friends at the World Intellectual Property Organization, or weipo. I don't know if they think that's as funny as we do, but if.

[Noel Brown]

You choose, you could pronounce it Whippo.

[Ben Bullen]

Yeah, yeah, there you go. If you want to make the voice.

[Noel Brown]

Though, you got to do the voice.

[Ben Bullen]

You got to do the voice. So trademarks, as our friends at WIPO say, they do date back for millennia, but we cannot currently date their origins with precision. And they're talking about identification marks. And dude, they go so deep into this. Can you give us a quote from Whippo directly?

[Noel Brown]

Boy, can I ever. WIPO says the following. 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. Long literate societies, by the way. Ben, just gotta interject here. That's also where the idea of brands comes from. You know, I mean, you're branding something by literally burning a signature mark of some kind into it with a hot iron so that people know that it's yours or people know where it came from. Which is another reason why it's often a little bit confusing, those differences and connections between trademarks and brands.

[Ben Bullen]

Yeah, yeah, exactly. You know, don't touch that. Cow. Cow. That's square, circle, triangle, wavy line. Cow. So this dates back, this practice of branding. I love your point there, Noel. This dates back about 15,000 years ago, 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, you know, like, hey, this part of the pyramid, this block is from me. Jeremy.

[Noel Brown]

Yes.

[Ben Bullen]

Super common name in Egypt.

[Noel Brown]

Mega common and a fine name, I might add. And zipping a little bit forward in time to the Middle Ages, tradespeople often used signs and marks to distinguish goods. And this practice was sort of expanded to become a mark of quality of certain goods and services.

[Ben Bullen]

Yeah, and it's very effective for human psychology back then as it is today. Right. We see that a trademark Exerts a lot of power on a consumer. Right. The idea being, what's our old trope? You get what you pay for. Right. So you may pay a little bit more for the thing with the insignia you like, but what you're really buying into is quality and durability. So that's why you see watermarks on fancy paper. That's why you see. I'll say it. That's why you see insignia and branding on cars.

[Noel Brown]

100%. And while you might pay less for like a Pinto, it's not going to last you as long as, say a BMW.

[Ben Bullen]

You. Yeah. Or Nova. Nova. That's a joke. That's a joke for.

[Noel Brown]

Is that a car joke? I don't think I get it. I think that one went over my head.

[Ben Bullen]

Nova means doesn't go.

[Noel Brown]

Ah, there you go.

[Ben Bullen]

So anyway, the evidence suggests the very first piece of what we'll call modern trademark legislation, or the precedent of that was passed in England all the way back in 1266 under the reign of a guy named Henry, who was the third Henry and king of that tribal organization at the time.

[Noel Brown]

Yes, King, our short King Henry iii. I'm not sure what his height was, but it was a set of rules that were codified, called the Assize of bread. And when you see it on paper, if you're a child like we are, you'll titter and ale. Sorry, the Assize of bread and ale. Guys, I gotta look up the word assize. I do not know this one. Is it about it's a dec for.

[Ben Bullen]

An edict or it's a judicial inquest. It's also hilarious because it is one space away from being peak comedy.

[Noel Brown]

Oh, 100%. We're right on the edge of peak comedy.

[Ben Bullen]

So this. So, Noel, from what you and I understand here, this ass size of bread and ale was really. We had to. We would feel bad later if we didn't grasp the moment. So. But this whole thing was a regulatory move. If you've ever seen FCC regulations or FDA is a better comparison. It's the idea of a state power saying we have certain standards for public goods. How much should bread cost? How much should it weigh? What size should it be?

[Noel Brown]

And maybe it shouldn't be full of poison or fingers. Yeah, one would hope. I actually think this is pretty Forward thinking for 1266. I don't think I realize that there was this level of quality control in industry that early.

[Ben Bullen]

Yeah, this is a real Spider man power and responsibility thing because you get certain rights as a baker. You also take on certain levels of accountability. So if you're a baker in this time in 1266, when this rolls out, you have to have a distinctive mark on your bread. And that can show the public that you make good bread. And if you don't make good bread, right, if you've got dirty flour, things like that, we will find you. The regulators. In theory, the regulators can protect the public by identifying your poopy loaves.

[Noel Brown]

So during the late part of the Middle Ages, the law offices of Conrad Srinian, who specialize in intellectual property law, has this to say. Laws began to develop to allow enforcement of Marx. These laws grew out of forgery, counterfeiting and fraud laws. But then in 1803, the powers that be over in France passed another important assize, I guess, or edict known as the Factory Manufacture and Work Place act, which actually criminalized counterfeiting of somebody else's mark, somebody else's seal and passing it off as your own. It also prohibited kind of talking smack about others like slander law, I guess, early examples of that, as well as wrongfully using the name of certain regions of production, which is still pretty enforced today. Something like this. That's why like champagne can't be called champagne. And unless it's made in the Champagne region of France. And there are other certain types of designations for things like butter from regions like Saxony and stuff like that.

[Ben Bullen]

Yeah, we see similar things already. As you said today, for instance, if you have Ohio ennui and it's not experienced in Ohio, it's just sparkling depression.

[Noel Brown]

That's good then.

[Ben Bullen]

I don't know if it's good. All right, we'll keep it. So you're laying this out perfectly, man. In 1857, France is ahead of the game. They institute the first comprehensive trademark system. This is the Manufacturing Goods Mark Act. Obviously we're translating from France. This set up a trademark deposit system and it said this system, this rubric for how to handle these things said, look, we're going to recognize use based trademarks and we're going to examine every new trademark based on trademarks that have been registered before England. A little late to the game here. Takes about a half a century to catch up. It's 1905 when they have their own version of this. In 1862, however, they pass the Merchandise Marks Act. And that's the one that says, hey, if you know something is counterfeit or you know something is misleading, you can't mess with it, you can't be associated with it. So first they punished people, right, for selling Temu products or you know something.

[Noel Brown]

By performing the five pains Shout out.

[Ben Bullen]

Lee, how many pains was it?

[Noel Brown]

Was it five?

[Ben Bullen]

Did I get that right? You failed it. Also, Max just wanted to chime in on the chat and say thank you for the Ohio slander. You're welcome, ma'am. We serve at the pleasure of the.

[Noel Brown]

Public risen it up in Ohio. Oh, wait, no. Ohio doesn't have Riz. I'm sorry, I'm still confused by a lot of Gen Alpha news. It is Skibidi. Indeed. Did you mention the Trademark Registration Act?

[Ben Bullen]

No, but we absolutely must.

[Noel Brown]

I think we should. That happened in England in 1875 and established a much more robust system to register trademarks. And I just wanted to add really quickly, I think we may have mentioned this when we were talking about patents and, you know, equally copyrights. And the idea of brands is all of this stuff is developed as a way to not like, stifle creativity, to not stifle innovation. Because if people thought that their hard work and creative time and effort was just going to be stolen by somebody else eventually, it would absolutely tamp down on any innovation. So these types of laws really came up out of necessity.

[Ben Bullen]

Yeah, yeah. The idea is to incentivize innovation. Right. And maybe.

[Noel Brown]

Maybe that's obvious. I just thought it was maybe worth mentioning.

[Ben Bullen]

I think it's huge to mention.

[Noel Brown]

I think it's cool that they recognize that, is what I'm saying. But it was a recognition of something that would ultimately collapse society. You know, if no one was doing cool things that would move society forward because they were afraid they were just going to get ripped off, then things would stagnate.

[Ben Bullen]

Yeah, exactly. And being incredibly self involved. Let's fast forward to the United States. That's where we live. Those are the marks of which we trade.

[Noel Brown]

USA.

[Ben Bullen]

USA. YouTube.

[Noel Brown]

It has its moments. It has its moments.

[Ben Bullen]

I love that radius. Usa. Three out of five has its moments. Wanted to give four stars. Kidding. That's a brutal rating. Five star.

[Noel Brown]

Can we give a Yelp review for the whole of the United States?

[Ben Bullen]

It's a tremendous experiment that continues today and we are immensely privileged to be part of that. The first federal statute. Do you like the diplomacy there?

[Noel Brown]

Absolutely. I think you nailed it, Ben. I'm trying to bite my tongue a little bit. It does have its moments here in the US of A. But experiment is correct. Correct.

[Ben Bullen]

Yeah. 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. The first federal statute dealing with trademarks occurs in 1870. The Supreme Court Court doesn't like it. They smack Congress on the heiney that.

[Noel Brown]

Was the IP man smacking him right on the bubble.

[Ben Bullen]

I love how this is a character. Yes. So the Supreme Court says, look, the copyright clause of The Constitution, Article 1, Section 8, Clause 8 does not give you, you, you knuckleheads of Congress. This does not give you the powers that you want. And then Congress feels some type of way about this. They respond by passing the Trademark act of 1881 based on the Commerce clause. And then the Supreme Court lets them pass fast forward 1946.

[Noel Brown]

That's a pretty significant fast forward.

[Ben Bullen]

It's a jump. It's a jump for sure. And this is where Congress passes the Lanham Act, L A N H A M, which is still, still sort of our go to way as a country for understanding trademark issues today.

[Noel Brown]

And in 1995, another pretty significant jump, Congress passed the Federal Trademark Dilution act which protects some of those famous trademarks we were just talking about, like the Walmarts, the targets, the Apple computers of the world, protects those from uses that would serve to dilute that creative distinctiveness that comes along with a design or an idea, idea like that that has become associated very closely with a particular company.

[Ben Bullen]

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[Ben Bullen]

Person calls 988, they're connected to a crisis counselor. Crisis is completely self defined.

[Noel Brown]

If you're wondering if you should call, you should probably call.

[Ben Bullen]

A caller can expect to talk about coping skills, talk about resources and ways to move forward beyond the call.

[Noel Brown]

They can call us, they can chat, they can text, and when they come out on the other side, they're feeling better.

[Ben Bullen]

Call or text 988 or chat 988lifeline.org More recently, Congress responded to a thing that you and I have talked about on various shows with our colleagues. Look, legislation always is outpaced by technology and innovation. So legislation is therefore always reactive. We've joked about it before. It's called cyber squatting, right? You see a new up and coming business like Shoe Feet and so you buy shoefeet.com and then you wait until the owners of Shoe feet, the company come to you and you sort of ransom off that Internet domain. Congress fought against this with the Anti Cyber Squatting Consumer Protection Act.

[Noel Brown]

But we know that there are loopholes around stuff like this, as evidenced by, I think I mentioned on a recent episode of either this or Stuff that. I want you to know there's a dude that was featured on NPR piece who has made good money buying up domain names associated with potential combinations of politicians who might go on to run together for insert office here. You know, like so that apparently is not fully protected by this Anti Cyber Squatting Consumer Protection Act. Yeah, to jump in real quick, one.

[Ben Bullen]

Of the best hints we still have.

[Noel Brown]

For Elder Scrolls 6, which is what, you know, 13 years in production.

[Ben Bullen]

Now where take place is Bethesda a.

[Noel Brown]

Number of years ago bought up like a ridiculous number of just trademarks of like Elder Scrolls, this, this, this and this because they're trying to avoid that thing right there.

[Ben Bullen]

Yeah, avoid the cyber squatting in Bethesda. Big fans get at us. Huge Skyrim guys. By the way, Bethesda actually Can I jump in? Have you guys ever played Dishonored before? I finally picked it up myself. It is tremendous. Great.

[Noel Brown]

Yeah, I don't know that one. I do have to say though, Bethesda, fix your glitches, get your house in order. I have yet to finish Skyrim because I keep running into game breaking issues. I just gave up a second time.

[Ben Bullen]

You just go to settings and crank.

[Noel Brown]

It down like one or two settings and it'll be fun. No, no, no. It's not about difficulty. It's literally a quest that won't let me progress. Oh, yeah. And it's just. I'm just fed up and I'm at a point where I'm past a reasonable save spot. It would cause me to have to backtrack so far that I'm just like, sorry. I do love Bethesda though. So that's why I'm saying, you know, with love in my heart, please fix your glitches.

[Ben Bullen]

I hate to just like, you know.

[Noel Brown]

Like, hey, Bethesda's gets fixed by the.

[Ben Bullen]

Modders, but if you look on the mod in the mods, there's some really good patches made by modders. Pretty good fixes, but it depends on your platform engagement. Anyway, Bethesda has three inevitable stealth archers. Thank you for Skyrim. Also, you clear clearly made all of us stealth archers. That's just how the game works.

[Noel Brown]

I'm a paladin.

[Ben Bullen]

All right. For now. Now, such an inside joke. Okay, so folks, we talked in episode one of this series about the advantages to a creator for registering a trademark, for messing with the concept of patents in general. We don't have to go too far down that road. Please tune in to our first episode. However, we thought it would be important to get in front of the next question you might be asking yourself, which is, so this all sounds well and good, guys. How do I get a trademark? Also, after going through all this trouble, can I lose that trademark?

[Noel Brown]

Yeah, it is a bit of a use it or lose it kind of question there. And with the help of attorney Brian Farkas, who specializes in these matters, we can shed some light on this. He mentions that the common law trademark rights are for just simply using that mark, whether it be a name, whether it be a logo, in the practice of a business commerce within a particular community. And this is totally fine for a lot of folks at a certain level of success or notoriety, right?

[Ben Bullen]

Yeah, exactly. This is something you can do largely online if you file an application on the USPTO website or us to, as we like to say, Then you're going to hear from them in about 90 days, three months or so on. And the examining forces there will write back to you and they'll say, okay, they won't immediately smack you down, right? They won't IP man you immediately. They will say, okay, good to go. Or more likely they'll say, you need to submit some corrections.

[Noel Brown]

Right? It needs improvement.

[Ben Bullen]

Yeah, yeah, they'll help you edit it. Registration becomes simple in that regard. If everything works and the wind is at your back, however, your pitch for a trademark can be challenged. And that's where things get it much more complicated. You might say, hey, I've got a great idea for. I'm trying to think of a famous story. Oh, I've got a great idea for my Apple company. And it's a very simple drawing of an Apple. And then a certain tech giant might say, ah, we already called dibs on that one. So then you have to go to court.

[Noel Brown]

Or a certain group of mop topped Brits might also have issues with this use. I'm really excited to get into that in a very near future episode. So Farkas, Brian Farkas, Attorney at Law kind of breaks down the process of registration thusly. He describes it as allowing your business to essentially scare away your competitors. Your mark, he says, will be listed on the USPTO's Register of Trademarks, which allows you to use that R in the circle symbol. And we'll also include it in a registry that is used to search preexisting trademarks because that's another part of the process. If you're a big company and you're considering making a trademark, you have to pay your internal legal team or outside counsel to perform this search, which is not like rocket science. And that's because of all of these ways that the USPTO have made this stuff extended.

[Ben Bullen]

Yeah, yeah. We run into this as well in our strange careers when we develop a lot of shows outside of this. And one of the first things we have to tell people when we're helping build wonderful explorations is to do their homework. Check on the idea of your show name. If it sounds that great, make sure someone else else doesn't already have that show name because that avoids a lot of pain points down the road. Look, you should always do your homework, do careful research to your point Noel, before you even pitch a trademark. And look, we're going to be honest, it can be very expensive to have a trademark, especially if it's challenged. You can go to USPTO's own website and see the long list of fees they have for filing electronically versus filing via paper. It's a couple hundred bucks or 500 bucks, depending on what you do. But then there are other fees that get tacked on. So we're not going to go into the weeds of that. Just please recognize there's a reason folks have built their entire careers on knowing what's going the legal expertise is key here.

[Noel Brown]

Bureaucracy is quite a beast to tackle. So just because your trademark is registered though, it doesn't mean that you own it in perpetuity. David H. Schwartz, another attorney specializing in this kind of thing, says that it requires constant vigilance to defend and protect that trademark. The moment you let your guard down, he says, there's a chance that someone else might swoop in and use your trademark without permission. This unauthorized authorized use could lead to confusion among customers and weaken the association between the trademark and the company represents. This is what we've previously described as brand dilution.

[Ben Bullen]

Yeah, yeah. And love this term that we teased earlier. When something becomes genericized, it can be a big blow to the company who owns that trademark right now. For instance, we say instead of searching for something on the Internet Internet, we say Google it. Or we say Xerox something if you're making a copy or people used to say that. And this is a big concern. Trademark dilution occurs when you see other forces, whatever they may be using this in an unauthorized way. It doesn't matter whether or not the products are actually competing. So for example, in if Elon Musk got a wild hair and decided to replace all the Tesla car branding with the Nike Swoosh, that would be trademark delusion or something like that. Because he's not selling shoes, but he is confusing consumers and that might weaken the unique association between the trademark and the actual company that owns it.

[Noel Brown]

Yeah. 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 genericide.

[Ben Bullen]

Yeah, yeah.

[Noel Brown]

I just. Someone had to have been being clever with that one.

[Ben Bullen]

It sounds way darker than it really does dark, but it sounds like war crime stuff. It was. It was clearly a portmanteau created by the A person who also created a trademark and then got mad when it got swiped. Right. That's why it's such a high stakes word. But it's a nice word. We love this language. There are ways to protect your trademark. Of course you can register it. You can also, like you said, Noel, beautifully put, Use it or lose it. Use Your trademark consistently monitor for infringements and take swift action against those if they occur. And then of course, Uncle Sam wants his victim. So here in the U.S. remember, you need to renew your trademark registration. It's different from a patent or a copyright. We'll explore those in a later series. Because get this, a trademark does not have a concrete defined expiration date. And here's what this reminds me of. Before we get to policy wonk about this stuff, it reminds me, Noel, of the tricky burden that milk expiration dates put on consumers here.

[Noel Brown]

Well, right, is it a sell by date or is it like an expiration date? And what's the wiggle room on either side?

[Ben Bullen]

Yeah, come on, man, that's unfair. Why do I have to purposely smell this and do a little experiment every time I'm not ready for my straight up black coffee? Coffee.

[Noel Brown]

Well, it can also depend on like the temperature you keep your fridge, you know, I mean, I think it's to cover their butts more than anything is to say it's gonna be fresh, definitely under whatever conditions before this particular day. But that doesn't mean that on the next day after that day, it immediately spoils. That's just not how science works.

[Ben Bullen]

And there's that whole thing about Al Capone, which is unproven, but maybe worth a ridiculous history episode in the future. Let's break it down. The idea is that Al Capone, the reason expiration dates are on milk products or on bottles of milk.

[Noel Brown]

What, because he strong armed the usda, waved up, menaced them with a bat?

[Ben Bullen]

I mean, he was definitely, he was a narco of his day. Apparently. The story goes. This is unproven. The story goes that his niece became extremely ill from drinking expired milk. And so he put his own. It became personal to him and he lobbied aggressively to get some kind of expiration date put on milk. The milk lobby or the dairy industry overall, Big Parma as we like to call them. Yeah, they've got some vinegar with them too. So the story is again proven that due to Capone's intervention, we ended up with the compromise of the sell by date. But I don't want to wake up and try to put some milk in my coffee and feel like I'm taking a gamble. You know what I mean?

[Noel Brown]

No, no, no, no, you don't. And in general, I think the sell by dates work as advertised. But it's up to you to determine how far past it are you willing to go.

[Ben Bullen]

Yeah, yeah. When are you going to roll those dice? Right? So anyhow, because a trademark does not have a concrete expiration date. That means technically, possibly a trademark can last forever. We're getting some of this from the legal practice of Michael E. Kondoudis and says, look, a trademark can last for infinity as long as it is used on a regular basis and renewed once per decade.

[Noel Brown]

Yeah, and like I said, we're gonna get into a really, really interesting and telling case of these types of trademarks to disputes. It's sort of the delicate dance that is sort of protecting one's trademark. A fascinating case that lasted quite a long time between Apple Computers and the Beatles company, Apple Corps. And it's really one for the history books. And we're gonna talk about it, I think in two episodes time.

[Ben Bullen]

Yeah, we're gonna talk about that very soon. We love the ridiculosity of this. That's a portmanteau I have for the speed and direction trademark which something becomes ridiculous. Oh my gosh. Thank you. Blushing. This is part two of our ongoing exploration of intellectual property. We hope you join us very soon for some upcoming episodes related to this and related to indeed other ridiculous things. We've been cooking a lot here in the new year and we can't thank you enough, fellow ridiculous historians for joining us. However, there is one person we can thank enough on air. That is our super producer and research associate for this episode and this series, Mr. Max Williams. Thanks, Max.

[Noel Brown]

Keep thinking, Lamore. More There it is. Huge thanks to Alex Williams who composed our theme. AJ Bahamas Jacobs the Puzzler, Jonathan Strickland the Quister.

[Ben Bullen]

Yes, Professor Rachel Big Spinach Lance the Rude Dudes at Ridiculous Crime. We were just talking with them a little bit off air. If you like our show, you'll love theirs. Thanks, of course also to everybody who came up with a great idea and dealt with all this bureaucracy to get it into the world.

[Noel Brown]

We'll see you next time. Next time, folks. For more podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts or wherever you listen to your favorite shows.

[Ben Bullen]

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