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Gotta Catch 'Em All!What’s the best way to bring IP issues into the public consciousness? As 2005 wound down, three items caught my eye, and two of them did the various IP systems — or the public — no favors. One was Nintendo’s demand that cancer researchers at Sloan-Kettering rename a gene. Henceforth, the Pokemon gene is now the far more prosaic Zbtb7. Laura Quilter covered of the Nature report on the exchange. Two was the paroxysm of anger over the possibility that a patent lawsuit would shut down the Blackberry system. James Surowiecki’s piece in the New Yorker was among the more temperate popular reviews. Three — the Baby Bear of the bunch — involved Hershey’s chocolate.

The Pokemon flap was just silly, but it doesn’t tell us much about IP systems run amok. Never mind the canard that trademark owners have to “police” their marks in order to avoid “abandoning” them. (In truth, much of the time, they don’t; “policing” the mark is usually much more about setting licensing rates.) The thoughtlessness behind this particular claim was truly awe-inspiring. “Pokemon” really is a valuable mark, and Nintendo is right to be vigilant about protecting it. But the law here doesn’t require a fix, I think. What needs to be fixed are processes that generate cease-and-desist letters and especially performance review and compensation systems in law departments that reward their unthinking distribution.

The Blackberry “controversy” (should a patent not be enforced because federal government employees are addicted to it?) was, in my view, similarly devoid of lessons for the law. The plaintiff in the case, NTP, has been trying to enforce patents on inventions that it does not practice or otherwise exploit, except through litigation and licensing. To a lot of critics of NTP and the patent system, that makes NTP a “patent troll,” which is another word for “bad guy.” What’s the problem? The problem is this: The Anglo-American IP world, and especially the patent and copyright worlds, aren’t built on a good guy/bad guy dynamic. They’re supposedly built on incentives and limited exclusivity and access and disclosure for the benefit of the public. Unless we’re going to get serious about judging IP ethics, rhetoric about “trolls” is misplaced. The question is the impact of “troll-like” behavior on the incentives of other participants in the patent system, and its impact on the benefits that the public derives from the system.

As we head into 2006, the result in Hershey’s silly claim over a chocolate bar sends a sane message about the proper scope of IP rights. A biography of Milton Hershey bears a cover that includes a photo of a Hershey bar. The company objected to use of the image and settled the case in exchange for a disclaimer of sponsorship appearing on the cover. The company claimed victory (the disclaimer will “help protect our trademarks and trade dress by making it clear that this book is not sponsored or licensed by The Hershey Co.”), but this was merely a polite way of saying, “never mind.” I hand out Hershey’s candy at Halloween, but I don’t post a disclaimer, since no one thinks that Hershey’s sponsors my family’s haunted house. It’s the difference between wrapper-as-mark, that is, as symbol, and wrapper-as-thing, that is, as the item itself. Wrapper-at-Halloween and wrapper-on-book-cover are both the latter, not the former, and therefore Hershey’s beat a quick, and wise retreat. Kudos to Simon & Schuster for recognizing and resisting such a flimsy claim, and for sharing a small IP lesson with everyone.

UPDATE: Changed the last image to a photo of the dust jacket of the D’Antonio biography (1/1). The little blue star in the upper left corner says: “This book is neither licensed nor sponsored by the Hershey Company.”