Scoble, Trademarks, and Pittsburgh

Robert Scoble, he of the excellent Scobleizer and the recent “Naked Conversations“, is in Pittsburgh today and tomorrow, and he gave a guest talk this morning in my Trademark Law class.

The talk was about how companies can and do use blogging for marketing and other purposes, rather than anything specifically to do with trademarks or trademark law itself.

As he described his travels through the blogosphere, however, I was struck by how the blogosphere and related distributed computing technologies may affect the conventional account of trademarks. In that account, the mark holder makes all efforts to conserve its control over the meaning of the mark. “Distinctiveness” and “likelihood of confusion” in trademark law are consumer-based standards, but the mark holder is entitled, and in some sense obligated, to control how the mark is managed. Meaning is concentrated in the mark; authenticity is a top-down process. In the emerging blogging/Google-driven account of brands, meaning (i.e., authenticity) is recursively distributed and collected among the company, the mark, and a diverse (and only loosely manageable) constellation of other constituencies. Trying to control how the mark is managed in this environment is not only orders of magnitude more difficult, it may even be impossible. Microsoft has 2,000 employee bloggers communicating with consumers about the company’s products, not to mention who knows how many non-employee bloggers with sites wholly or partly dedicated to Microsoft products. Purely as a practical matter, Microsoft can’t “police” its marks in this environment as effectively as it can otherwise. And as an abstract matter, the “meaning” of any particular mark — the authenticity of the product — is far, far less under Microsoft’s control than the conventional account assumes. Perhaps not surprisingly, Robert reported that Microsoft’s reputation among consumers is improving.

Thanks, Robert, for a thought-provoking talk! And happy birthday, too.