Right out of law school, brands were on my mind. I began at Quinn, Emanuel and learned trademark law practice there. I picked up on the way companies such as Mattel, the Academy of Motion Picture Arts and Sciences (think Oscar Awards), Lockheed Martin, and others thought about trademarks. They called them brands. My paper with Sandy Rierson, Confronting the Genericism Conundrum started my work on the topic. We looked at the core value of a brand and started to poke at the blended functions of a brand with which trademark law struggled. We argued that information costs have dropped and that courts looked to uses that did not matter as they determined the status of a mark (at 1834). We also showed in relying on dubious evidence and not paying attention to the broader linguistic aspects of trademarks, courts set up incentives for policing that not only made little sense but are wasteful, not to mention fostering unnecessary clashes between expression and trademark interests (1835-1842). At that point we argued that looking at how consumers encounter the mark in a market setting may help parse the issue. As we put it,
Consider that a person with a cold can walk into a colleague’s office, ask for a “kleenex” and be handed a tissue but not a Kleenex®-brand tissue. At that moment the person with the runny nose is likely to accept the tissue offered without complaining or caring about the brand. When that same person is in a supermarket, however, he may certainly care whether he buys Kleenex® versus Puffs® brand facial tissue, due to his experience with the brands’ relative softness or thickness.
After that piece, I read more and thought about whether trademark law and the search costs approach mapped to branding practices. They don’t. More on that in the next part.
The image is of a coaster available here.