Lesson: Trademarks with Ed Timberlake

Step #1 Trademarks 101: Learning trademark basics

A trademark is basically something you use to set yourself apart from other people. In the case of a business, most often it's the name of a business or the logo. Not all trademarks are registered trademarks and they don't have to be. You have to go through a process to get something registered, and if you survive that process then you get to put the little "R" in a circle next to your name. There are a lot of legal benefits that go along with that. Pretty much everybody who is doing business is using something as a trademark. They are using some sort of name out in the world to identify themselves.

The general sort of umbrella term that’s often used is “intellectual property”. When people say “intellectual property”, they typically mean trademarks, copyrights, patents. I don't think that we should actually say the words “intellectual property” ever again. To clump things together under the heading of intellectual property, I think, does all of the different areas a disservice because they are just too distinct from each other. There is nothing really common about them.

It’s a little bit like if you had a bin, you were cleaning up the floor, and you decided to throw the Lego pieces in with the Duplo pieces and some oranges into this bin. You would end up with this pile of stuff that you immediately have to sort out before you can do anything with them. I don't think we should call it “intellectual property”.

Trademarks are in this area where really the key to them is identifying that your stuff comes from someplace else, and so that's a very different job than what copyrights do. The idea behind copyrights is that we want to encourage people to create stuff. In order to encourage people to create stuff, new things, write plays, write books, paint paintings, then you kind of hold out this, “Look, we'll give you certain rights that nobody else has over that stuff if you'll just create it.”

Great thing about copyright laws, they don't care what it is. It could be a crappy play, it could be a terrible painting, still, if we give you those rights and everybody goes and paints something then sooner or later we are going to get some paintings that we like, so it's a fair trade off.

Trademarks, there’s really not this encouraging you to own something. There is not this idea that you are going to stake out a certain space that's going to just be your own. The kind of theoretical underpinning behind trademarks is not particularly for the person, not primarily for the person who has the trademark. It's for the other people in the world, to make it easy for them to tell where your stuff came from.

Supposedly — I do not know if this is true but it is too good of a story to matter whether this is actually true or not — but evidently the early evidence has been found of trademarks in pottery. So like in a pre-literate society people are making pots and going to a market and selling pots and I guess if you went to the market and got a pot from somebody and you really liked it and you wanted to go back and say, "Now I need another pot,” if you wanted to know is this made by the same guy, is this going to be as good as that other one? I don't want just a terrible pot I want something of that good a quality,” you could look, and if there was a particular mark, or a particular design or a motif or something on it, that would be your key, like, “Okay, I'm only going to buy pots from this guy now because he makes really good clay pots.”

Where trademark law is looking is actually in the direction of the consumer to make it easy for the consumer so that if I went back to the market and there were a bunch of other pots there that weren’t very well made but they had the similar design, or a similar identifying feature, then I guess in theory I might be confused. I might not know if whether to get these pots or I might not know what kind of quality. So it's supposed to be that, hey, when you see this thing, you can trust that this is going to be good quality stuff.